Get Vaccinated or Get Tested…Or Else

Carissa Davis

On Thursday, September 9, in the wake of a mandate from President Biden, the U.S. Department of Labor (“DOL”) announced that many employers will soon be required to mandate full vaccination for their employees or require that employees submit to weekly COVID-19 testing.   

The DOL tasked the Occupational Safety and Health Administration (“OSHA”) with the duty of promulgating regulations imposing the new requirements. While OSHA’s last emergency temporary standard took months to finalize, the White House announced this rule will be published in the coming weeks and it is expected to take effect shortly thereafter. The details are not yet clear, but some information is available. Employers with 100 or more employees will be required to comply with the rule. Covered employers will be required to provide workers with paid time off for the workers to get vaccinated, and if necessary, to recover from any side effects. Noncompliant employers may be fined up to $14,000 per violation.

The private employer policy comes at the same time the Biden Administration announced that all federal workers must be vaccinated. Presumably, the federal mandatory vaccine policies will allow for limited exceptions for certain circumstances related to religious objections and disabilities.

Like most other COVID-19-related issues, the requirement and realities facing employers arising from this most recent mandate are sure to evolve quickly. For example, the new federal requirements may very well overlap with state and local legislation, triggering complex preemption issues. When formulating workplace policies, employers are well-advised to contact counsel.