On September 9, 2021, President Biden announced a six-part plan to continue to combat the Covid-19 pandemic. The policy he announced that will most directly impact employers is that the Occupational Safety and Health Administration (“OSHA”) will be issuing a new emergency temporary order requiring employers with 100 or more employees to ensure that all their employees are either vaccinated against Covid-19, or tested for the virus on a weekly basis. According to the Biden administration, this new emergency temporary standard “will impact over 80 million workers in private sector businesses with 100+ employees.”
Employers who employ the requisite number of employees should certainly take note of this significant new workplace policy; however, they will likely still have many questions that the administration has not answered yet:
1) When does this policy take effect? President Biden mentioned that the new emergency temporary standard will be issued in a matter of “weeks” in his speech on September 9th, but no further information on a more precise timetable has been released.
2) Are employers responsible for providing paid time to employees in order for them to get vaccinated? This is also unclear at this time, however a previous OSHA emergency temporary standard for healthcare employers required that employers provide paid time off to obtain and recover from vaccination, so it is more likely than not that this provision, previously applicable only to healthcare employers, will simply be expanded to all employers with 100+ employees.
3) Are employers responsible for paying for testing for employees who choose not to get vaccinated? Weekly Covid testing is not free, and the costs can add up quickly for large employers and/or employers with large percentages of employees who choose testing. Again, the administration has so far not provided any information on who is responsible for the cost of weekly testing. Likewise, since it will not be feasible for many employers to offer on-site testing, the question of whether employers must offer paid time off for employees who choose to be tested to travel to and from a testing location is unclear.
President Biden's speech outlined the new policy in broad terms, and employers can expect further information and answers to some of these questions to be forthcoming over the next few weeks; however, employers are advised to consult with experienced employment counsel prior to making any changes with respect to this new policy, especially since there are so many unanswered questions about the specifics of how the policy will be implemented.