On September 9, 2021, the Biden Administration announced the U.S. Labor Department (DOL) will issue an emergency rule requiring companies with 100 or more employees to ensure employees are either fully vaccinated or test negative for Covid-19 at least once a week.
This is a pandemic of the unvaccinated. And it’s caused by the fact that despite America having an unprecedented and successful vaccination program, despite the fact that for almost five months free vaccines have been available in 80,000 different locations, we still have nearly 80 million Americans who have failed to get the shot.
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The bottom line: We’re going to protect workers from unvaccinated coworkers. We’re going to reduce the spread of Covid-19 by increasing the share of the workforce that is vaccinated in businesses all across America.
It is estimated that the rule will apply to more than 80 million private-sector workers.
No doubt this announcement will be subject to intense debate, likely legal challenges, and campaign fodder for political talking heads. But before getting to substantive and meritorious questions about the actual rule, it is helpful to consider the following:
- OSHA is permitted to issue temporary emergency standards to new hazards that pose a “grave danger” to workers. See Emergency temporary standards under 29 U.S.C. 655. Under this provision, OSHA will argue Covid-19 poses a grave danger to employees as the number of Americans who have died from Covid-19 or strive to recover from it continues. At the time of President Biden’s announcement, the U.S. is seeing about 150,000 new cases of the virus and 1,500 fatalities a day. This is up from an average of 300 deaths each day a few months ago, which will further bolster the justification for the emergency rule.
- The DOL’s Occupational Safety and Health Administration first issued Covid-19 emergency standards under the Trump Administration. However, the Trump Administration’s OSHA Covid-19 rule, it was limited to many healthcare employers. And it vaguely required such employers to safeguard employees from Covid-19 infection without specifying how to do so. For Michigan employers, MIOSHA also promulgated Covid-19 Rules, which were applicable to all employers with additional requirements for particular industries. But the MIOSHA rules are set to expire on October 14, 2021.
- OSHA’s last Covid-19 guidance from August 2021 emphasized that vaccination was the most effective way to protect against severe illness or death from COVID-19. But it imposed no obligations on employers to require employees to be vaccinated or tested.
- Long before Covid-19, OSHA imposed workplace vaccination rules. Specifically, OSHA mandates that employers whose employees may be exposed to Hepatitis B offer free vaccinations to employees. Employees choosing not to be vaccinated for Hepatitis B must sign a form acknowledging that they were offered the shot and declined.
Here is what the Biden Administration said about the DOL’s prospective Covid-19 rule:
- President Biden is directing OSHA to require businesses covered by the rule to give employees paid time off to get vaccinated and to recover from any side effects.
- Administration officials also said individuals working for companies subject to the regulation who refuse to get vaccinated would need to show proof of a negative virus test at least once per week before reporting to work.
- Administration officials have said OSHA could fine non-complying businesses up to $14,000 per violation.
Yet, without more details, including the actual rule, many questions exist. Here are some of the questions I have:
- How will vaccination status be verified?
- Who will pay for Covid-19 testing?
- Will employers covered by the rule be able to deduct or otherwise pass the cost of weekly testing to those employees who refuse to get vaccinated?
- Will mask mandates be included in the rule?
- How will individual exemptions – legitimate and manufactured – be handled under the rule?
Squables over legal and policy merits of the rule have begun and they will continue. But for business owners focused growing and protecting their business, now is the time to consult with their employment law specialists about having a vaccine and testing policy. That policy should allow for appropriate exemptions for people with qualified disabilities, under Michigan or federal laws like the Americans with Disabilities Act. And employers should be prepared to handle employee claims about sincerely held religious beliefs that may qualify for exemptions to their employer’s vaccine policies.
Since 2001, attorney Jason Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws. Contact Jason if you have questions about this article or complying with Michigan or federal employment laws.