November 08, 2021

OSHA Issues Rule Mandating COVID-19 Vaccination or Weekly Testing for Employers With Over 100 Employees

November 08, 2021

OSHA has now published a federal rule mandating COVID-19 vaccinations or at least weekly testing for workers at employers with 100 or more employees. This codifies the September 2021 directive by the White House to have the Department of Labor implement a rule to assist in increasing vaccination numbers in the United States. While OSHA rules generally take many years to develop, the current ruling is being issued through an emergency temporary standard (ETS) that allows OSHA to address a grave danger and protection therefrom.

The rule requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or policy requiring employees to choose either to get vaccinated or to undergo weekly COVID-19 testing, and wear a mask at work. The first deadline for employers to comply is December 5, 2021, with enforcement set for January 4, 2022. Workers must be fully vaccinated by January 4, 2022, or submit to weekly testing. While employers are not required to pay for the COVID-19 testing, employers must provide paid time off for employees to receive and recover from the vaccine. Employers that do not enforce the rule could be cited OSHA and fined up to $13,653.00 for each serious violation. An employer intentionally disregarding the rule, could be fined high as $136,532.00.

There will be challenges to this rule. Multiple States have filed suit against the Biden Administration seeking injunctive relief. They allege, amongst other things, with declining COVID numbers, this no longer qualifies as an emergency and/or grave danger, that OSHA does not have authority to impose a medical policy under the guise of a workplace regulation, and that the mandate runs afoul of the United States Constitution, specifically the Commerce Clause and the First Amendment protecting freedom of religion.

Courts have shown a propensity to recognize a State’s right to establish a mandatory vaccine program. The United States Supreme Court addressed this issue in 1905 under Jacobson v. Massachusetts, which dealt with a citizen’s objection to a small pox vaccination requirement. The Court held that, “[t]he liberty secured by the Constitution of the United States does not support an absolute right in each person to be at all times and in all circumstances, wholly free from restraint.” It concluded “that it is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of public health.”  Even though Jacobson dealt specifically with State’s rights, OSHA will argue that Federal policy trumps State’s rights.  Courts continue to cite this ruling as precedent, that there is no fundamental right to refuse a vaccination, especially when it is a measure of last resort and shown to be in the interest of public health.

While some of these questions may remain unanswered by the compliance deadline of December 5, 2021 and the enforcement deadline of January 4, 2022, employers with more than 100 employees should have a vaccine policy in place that comports with the OSHA ruling and includes a clear enforcement mechanism and proper recordkeeping.

If you have any questions this rule and the impact on your business, please contact any one of our attorneys at Wiedner & McAuliffe by email or phone at 312-855-1105.