The Biden Administration has announced that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) will issue emergency standards related to COVID-19. OSHA previously issued emergency standards applicable only to the healthcare industry under the belief that the non-mandatory guidance OSHA issued related to protecting employees from COVID-19 was sufficient to protect employees in other industries. At this time, it is believed that the soon-to-be issued emergency standard will apply to any business employing 100 or more employees.
Under the new emergency standard, employers must require that employees either (1) receive a vaccination or (2) undergo weekly COVID-19 testing. Presumably, employers will be required to collect and retain medical data about employees in the form of either vaccine documentation or weekly test results, placing employers in a precarious position, particularly given other legal requirements related to the privacy of employee medical and genetic information.
The emergency standard would require unvaccinated employees to present evidence of a negative COVID-19 test result before reporting to work each week. It is currently unclear as to who would be responsible for the cost of the testing or what can be done to ensure that weekly testing can be administered and processed in a timely manner. In many parts of the country, it can take days for an individual potentially exposed to COVID-19 to receive an appointment for testing. The demand for testing will increase under the emergency standard. It is unclear if an adequate number of tests will be available or if the laboratories necessary to process the tests will have adequate resources to respond to the increased demand.
For employees who are not yet vaccinated, but later opt to receive the vaccine, the emergency standard will likely require employers to provide paid time off to receive the vaccine and recover from side effects. It is unknown if OSHA will provide guidance on how to provide time off without disrupting business in the event that hundreds of workers simultaneously decide to become vaccinated instead of submitting to a weekly test when the standard becomes effective.
On the enforcement front, OSHA is expected to announce a fine of up to $14,000.00 per violation for non-compliance. Accordingly, employers will need to diligently monitor the vaccine and testing status of employees because failing to obtain proper documentation from even a single employee may result in a $14,000.00 fine.
While at this point it is unclear when the emergency standard will be effective, it should be noted that emergency standards undergo an expedited approval process. The emergency standard for the healthcare industry was developed within only six months. It is currently unknown when development of this standard began. Therefore, it would be wise for employers to begin gathering documentation of vaccine status and, if considering adopting a vaccine mandate, do so sooner rather than later.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
