In my practice, I am already receiving multiple questions about President Biden’s September 9, 2021 directive requiring that companies with 100 or more employees mandate vaccinations for all work staff or alternatively conduct weekly COVID-19 testing. Many of my employer clients want to know more about these requirements, in particular, whether they should already be mandating vaccinations or conducting employee testing pursuant to the President’s directive. The answer that I have given to my clients so far is no, nothing is yet required, because we still have no idea what the exact details of those vaccination/testing requirements will be.
Biden’s directive will not become effective until the Occupational Safety and Health Administration (“OSHA”), through its emergency rulemaking authority, issues an actual rule(s) that outlines the scope of the expected federal mandate and provides greater details on what will be required of employers with regards to both vaccinations and testing. Already, there have been murmurs of possible legal challenges to whatever rule is issued.
Through its emergency rulemaking powers, OSHA may issue rules and regulations to eradicate workplace safety risks. The expectation is that OSHA will ultimately ground its rulemaking here on this issue on the claim that unvaccinated workers pose safety risks to others around them in the workplace. As followers of this blog know, vaccination mandates by employers have long been recognized as a legally valid exercise of employer authority, subject of course to possible health and religious related exemptions. We expect that similar exception requirements will be recognized under whatever emergency rule OSHA issues. We also expect that more details will be supplied about the scope of any required testing requirements once we have OSHA’s rule. While the legality of vaccination mandates by employers is well settled, legal experts differ as to whether OSHA, through its emergency powers, has the legal authority to impose vaccination mandates on employees through their employers. This difference of opinion has generated much of the discussions about the possibility of legal challenges to stop the enforcement of any vaccination rule issued by OSHA.
So, my best advice at this time is to stay tuned. Once we get the final emergency rule(s) from OSHA, there will be greater clarity on both the exact requirements the federal agency is imposing, as well as when employers will be expected to comply, assuming, of course, that no anticipated legal challenges succeed in disrupting or delaying implementation and enforcement.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.