Yesterday, President Biden announced new vaccination requirements impacting both the federal and private sectors. In addition to Executive Orders covering federal employees and federal contractors, the President also announced that he was directing the Department of Labor’s Occupational Safety and Health Administration (OSHA) to draft a new emergency standard requiring businesses with over 100 employees to ensure all employees are either vaccinated for COVID-19 or submit to weekly COVID-19 testing. . In addition to the OSHA standard, the Centers for Medicare & Medicaid Services (CMS) also announced that it will be releasing emergency regulations in October, which will require vaccinations for all employees in hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, as a condition for participating in Medicare and Medicaid programs. It has been reported that the OSHA emergency standard would affect an estimated approximately 80 million workers with another 7 million workers falling under the coverage of CMS’s emergency regulation.Administration officials have stated that non-compliance could result in a $14,000 fine per violation. OSHA has the authority to promulgate emergency temporary standards if it can show that workers are exposed to a grave danger or new hazard and that an emergency standard is necessary to address that danger. The standard would take effect in about half of the states immediately after publication; those states with their own OSHA-approved agencies would have thirty days to adopt a standard that is as, or more, effective than the emergency rule.
The next step for employers is to monitor for the new standard which will be published in the Federal Register. Once the emergency temporary standard is published it may be challenged within the first fifty-nine days in the appropriate U.S. Court of Appeals, an outcome that is likely to occur given the initial reaction to the announcement. In the interim, affected employers should begin planning on how they will address these requirements with their employees and how the mandates may affect current policies.
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