On September 9, 2021, the Biden administration announced a new plan to combat the ongoing coronavirus pandemic in the United States. A critical component of that plan calls on the U.S. Occupational Safety and Health Administration (OSHA) to develop and implement a new emergency temporary standard (ETS) to require employers with more than 100 employees to require that their employees are either fully vaccinated or subject to COVID-19 testing at least once per week:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

Neither the White House nor OSHA announced any details, such as an estimated date of when OSHA might issue the ETS, or whether employers must pay for vaccinations and/or testing.

Takeaways

• According to a press briefing OSHA held late Thursday afternoon, expect to see the ETS in “the coming weeks.”

• Since the COVID-19 ETS for healthcare requires healthcare employers to pay for vaccinations and provide a brief amount of paid leave to employees to get vaccinated and recover from any potential side effects of vaccination (see 29 C.F.R. 1910.502(m)), OSHA will likely require the same of all employers covered by this new ETS.

• What about payment for testing and paid leave for testing? That is a harder question to answer. Historically, OSHA has favored the idea of making employers pay for safety-related measures. But permitting unvaccinated employees to pay for their COVID-19 tests and take time off from their own accrued time-off allotments to get tested provides compelling incentives to get vaccinated—which is the ultimate goal of the Biden administration’s new plan. If OSHA wished to align with the Biden administration’s goal, then OSHA would not impose a mandatory requirement on employers to pay for testing (or time off for testing) for unvaccinated employees (with accommodations made for employees who are unable to get vaccinated for medical or religious reasons).