By Brent I. Clark, James L. CurtisBenjamin D. BriggsAdam R. Young, Patrick D. JoyceIlana R. Morady, Daniel R. Birnbaum, Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On October 12, 2021, OSHA submitted to the White House’s Office of Information and Regulatory Affairs (“OIRA”) an emergency temporary standard requiring private employers with more than 100 employees to implement vaccine mandates or testing.

The emergency temporary standard seeks to implement President Biden’s directive, a piece of his COVID-19 Action Plan announced on September 9, 2021, for OSHA to issue a regulation requiring businesses with at least 100 employees to mandate workers receive the COVID-19 vaccine or be tested weekly.  President Biden’s Plan indicated that the ETS will “provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.”  For additional information on the proposed contents of the ETS, see our prior blog on the President’s Plan.

OIRA’s regulatory reviews can take months, as it’s agency policy to meet with interested stakeholders in public meetings; OIRA held more than 40 such meetings when considering OSHA’s healthcare ETS published in June 2021.  However, we anticipate the OIRA will limit stakeholder input, perhaps eschewing the meetings altogether, so that OSHA can be cleared to push its rule on an expedited basis and meet the Administration’s goal to maximize vaccinations in the near term.

Once OIRA approves the vaccine ETS, OSHA likely will post an unofficial version of the text on its website, before the Federal Register publishes the final standard.  We expect legal challenges to the emergency standard (e.g., from State attorneys general), and would note that OSHA has had limited success clearing court challenges with regard to many past emergency standards.  Nonetheless, employers should evaluate their ability to comply with a vaccine mandate, including whether to allow for a testing option, how to handle accommodation requests, and what implications they may have vis-à-vis unionized workforces.

Under this new ETS, employers may implement a “hard” vaccine mandate with no testing option.  We have numerous materials to help employers develop and implement a vaccine program, including with regard to requests for religious and disability accommodations.

For more information on vaccines or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.