On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a rule requiring employers with 100 or more employees to ensure that all of their employees are vaccinated or that unvaccinated employees test for COVID-19 on (at least) a weekly basis. The rule also requires that employers with 100 or more employees provide paid-time for employees to get vaccinated. Finally, the rule requires that covered employers require that all unvaccinated wear masks in the workplace. OSHA’s rule has been the subject of significant debate and litigation, so let’s examine the specific requirements and the current status of the rule to determine what exactly needs to be done.

Who is covered by this rule?

Employers with 100 or more employees

What does the rule require?

1) Employers must ensure that their employees have received the shots necessary to be fully vaccinated by January 4, 2022.

2) After January 4, 2022, any employees that are not fully vaccinated must produce a negative COVID-19 test on a weekly basis.

3) Any employees with positive results or those diagnosed with COVID-19 must be removed from the workplace.

4) Employers must require all unvaccinated employees to wear masks when at the workplace.

5) Provide paid-time for employees to get vaccinated and, in necessary, sick leave for any recovery from side effects following the shot.

Do all employees have to be vaccinated?

No, but if employees are not vaccinated, they must be tested weekly for COVID-19 and wear a mask in the workplace.

What is the penalty for violation?

OSHA can impose a fine of $13,653 per violation against employers. That fine can be multiplied by 10 for willful violations of the rule.

What have the courts said?

Multiple lawsuits were filed following the announcement of the rule, mostly focusing on OSHA’s legal authority to make such a rule. While the Supreme Court has previously ruled that States possess the power to require vaccinations (Jacobson v. Massachusetts), it has not held that the federal government has the same power. The federal government is relying on the OSH Act of 1970, the law that created OSHA, which states that when employees are subjected to a “grave danger,” OSHA may enact an emergency standard to prevent exposure from that danger.

The current battle over the rule is occurring the United States Court of Appeals for the Fifth Circuit. The Court issued a nationwide stay, blocking the rule from taking effect. Will the Fifth Circuit have the last word? It is unlikely. We will probably see this matter elevated to the Supreme Court to determine if the federal government has acted within its authority when making this rule.

As litigation is ongoing in this matter, OSHA and the Biden administration have suspended activities related to the implementation and enforcement of the requirements. Despite the suspension of activities related to the rule, the US Chamber of Commerce has advised that businesses proceed with implementation until a final ruling is made.

What should covered employers do in the meantime?

If you are an employer with 100 or more employees, you should begin making preparations in the event that this rule takes effect. Encourage employees to receive the vaccination and/or inform all unvaccinated employees that, if they remain unvaccinated and the rule takes effect, they will be forced to test weekly and wear a mask in the workplace. Preparing and educating employees on the potential impacts of the rule will put covered employers in the best position to avoid possible fines if/when the rule takes effect. Preparing for the roll out of the rule at this early stage will assist with a later implementation of any changes in policy, if necessary.

If you have questions about this article, please contact Sean Mackin (smackin@setlifflaw.com) at (804) 377- 1268 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.