The OSHA Emergency Vaccine Standard is Here. Are Employers Prepared for This and

Lainee Beigel is a Senior Vice President with EPIC Insurance Brokers and Consultants based in the Northeast. She currently serves as the Emerging Risk and Technical Lead for Executive Risk and Cyber. She can be reached at [email protected]

On September 9, President Biden announced a six-part COVID Action Plan. The key element in the plan is an Emergency Temporary Standard (ETS) rule through OSHA that would require all employers with 100 or more employees to show up to work each week with a negative COVID test if not vaccinated.

The rule will also require employers to provide paid time off to employees receiving the vaccine, and time to recover if an employee is not feeling well afterward.

These rules will impact both benefit and employment law compliance under OSHA, HIPAA, EEOC and GINA. New administrative responsibilities will be established for employers who wish to comply, and employers will need to be prepared with vendor solutions.

The rule would ultimately impact 100 million private sector workers who are not yet vaccinated. Employers who do not comply will most likely be subject to a fine from OSHA. The rule includes a mandate that the employees of contractors who do work with the federal government must be vaccinated.

Also included are employees of health care facilities that receive reimbursements from Medicare or Medicaid. Biden’s plan also includes steps to keep schools open and would require vaccinations for school staff. It also seeks to make testing more easily available and would offer loan support and PPP loan forgiveness for small businesses.

There are many unknowns, including how this would impact work environments with labor unions.

The COVID-19 Action Plan: Legal Repercussions Are Likely 

Biden’s action plan will face legal challenges, with a likely argument that his directive is in violation of the separation of powers between the executive, judicial and legislative branches.

Challengers may also attest that the rule does not allow states to maintain their right to set their own health care policies. Potential lawsuits may also argue that it violates the 14th Amendment’s right to personal liberty. The ETS is not directed at individuals, however, but corporations, so it is not likely this will stand up to legal scrutiny.

There is also the question of whether this exceeds the powers of OSHA’s authority and its power to make rules under the Occupational Safety and Health and Act of 1970.

By including the option for testing, the rule allows for accommodation of those declining the vaccination for medical or religious reasons. There does not appear to be any religious belief or disability that would prevent testing, making the testing alternative more legally…