On September 9, President Biden announced that he would direct OSHA to mandate employers with 100 or more workers 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. Employers should recognize that this did not take effect upon his announcement because OSHA must issue an Emergency Temporary Standard (ETS) to implement this requirement.
The White House said that this requirement will impact over 80 million workers, but many questions remain for employers, including whether the action will stand the test of expected court challenges, which will likely begin once OSHA releases the ETS. Regardless of its legal status, employers have a range of questions including how to ensure vaccination, whether an employer is held harmless if they comply in good faith, how to address vaccine refusal and which test results to accept.
For now, employers and their lawyers must wait on OSHA to release the ETS before examining their appropriate next steps, all while also monitoring court challenges as they proceed. If waiting on OSHA to issue an ETS sounds all too familiar, it should. Hopefully, this time they will not leave employers wondering for five months.
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