By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.

On September 9, 2021, President Biden ordered the promulgation by OSHA of an Emergency Temporary Standard (ETS) applicable to employers with 100 or more employees. Under the ETS, covered employers will be tasked with requiring employees to be either fully vaccinated or tested weekly for COVID-19. Covered employers will also be required to provide employees paid time off to (1) obtain vaccines, and (2) recover from the side effects of vaccinations. An employer which violates the ETS will be subject to a penalty up to $14,000 per violation.

Many employers may welcome an OSHA standard as support for (1) existing vaccine mandates, or (2) new vaccine mandates. Still, the ETS announced by President Biden faces an uncertain future for at least three reasons.

First, the ETS has yet to be written by OSHA. The last time President Biden directed OSHA to promulgate an emergency COVID-19 standard, delays plagued the agency’s response. Six months elapsed between President Biden’s January 21, 2021 Order, and the publication of the ETS on June 21, 2021.

Second, once implemented, the ETS will likely be challenged in court. One potential basis for a legal challenge is the need for a ETS. An ETS is not subject to the same procedures as other OSHA standards and thus requires a showing of “grave danger” to employees. This “grave danger” threshold may be difficult to meet for an unvaccinated employee who only interacts with vaccinated employees or who only works from home.

Another potential basis for a legal challenge is the paid time off requirement. OSHA is charged with providing employees with a safe workplace, not enforcing pay regulations.

Still another legal challenge may be the efficacy of the ETS. Any vaccine mandate will likely provide exemptions based upon medical or religious reasons. For such employees, the question will be whether weekly COVID-19 testing is a viable alternative. OSHA will also have to explain why the ETS covers only larger employers, and not smaller employers with less than 100 employees.

Finally, President Biden’s directive leaves several questions to be answered by OSHA in the ETS. How will employers verify vaccination status? Who will pay for vaccinations? Who will pay for COVID-19 testing? How will employers cope with logistical issues related to COVID-19 testing over which they have no control?

For now, employers should continue to heed the advice of legal counsel as to unvaccinated employees in the workplace. The blog will provide updates as the promulgation of the ETS by OSHA progresses.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.