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It’s been one week since President Joe Biden unveiled his six-part plan to combat the spread of the coronavirus — including an expansive vaccine and testing requirement for millions of American workers.
Biden’s “Path out of the Pandemic” calls on the Department of Labor’s Occupational Safety and Health Administration to draft a rule requiring workers at companies with 100 or more employees to get vaccinated or submit to weekly COVID-19 testing.
OSHA is expected to issue the rule as an Emergency Temporary Standard, or ETS.
But the bare-bones announcement left much to flesh out, with major law firms and legal experts scrambling to interpret what little information they had.
“This raises more questions than it answers, both legally and practically,” Dan Bowling, a senior lecturing fellow at Duke University’s School of Law, told McClatchy News after Biden’s briefing.
Labor and employment firms are now searching for answers based on OSHA’s track record and information trickling down from higher-ups.
Here’s what we know.
What is OSHA’s timeline for implementing the ETS?
Up until the coronavirus pandemic, OSHA — which oversees workplace health and safety regulations — hadn’t issued an Emergency Temporary Standard since 1986, according to Littler Mendelson P.C.
The agency issued its first COVID-related ETS this summer, which took “nearly six months and involved over 40 stakeholder meetings,” Seyfarth Shaw LLP said.
This next rule is expected to take significantly less time, but answers vary as to when it will be ready.
Labor Department officials have hinted it will be issued in the “coming weeks,” Fisher Phillips LLP said. Ashley Brightwell, an attorney with Alston & Bird in Atlanta, told the Society for Human Resource Management it won’t be for another 30 to 60 days, while Littler said it could be anywhere from two to eight weeks.
The rule takes effect as soon as it’s published in the Federal Register — which is a compilation of current regulations, including presidential documents, rules, proposed rules and notices.
States with their own OSHA plans will then have 15 to 30 days to adopt the federal rule or implement one that’s similar.
How long do Emergency Temporary Standards last?
OSHA will issue an ETS “to address a specific safety issue in an expedient manner,” according to Nixon Peabody LLP. That means the rule undergoes an expedited review process that’s not subject to the typical period of public comment.
An ETS can remain in effect for up to six months, Fisher Phillips said. After that, it has to be replaced by a permanent OSHA rule under the formal rulemaking process.
According to Littler, the ETS could be in effect for a shorter period of time if it gets challenged or stayed in court.
Who will pay for regular COVID testing?
The question of who pays for the cost of testing unvaccinated workers on a weekly basis remains unanswered.
OSHA has historically “favored the idea of making employers pay for safety-related measures,” according to Ogletree Deakins. But the Charlotte law firm said companies could require employees to pay for their own COVID-19 tests as an incentive to get vaccinated.
Insurance might cover the cost of those tests, Fisher Phillips said, while some states have laws that say employers have to cover the cost of mandatory medical tests or reimburse their employees for them.
In the interim, Biden has said major retailers will sell at-home rapid tests at cost for at least the next three months. Free testing sites will also be expanded at retail pharmacies, Littler said.
Will employees be paid to get vaccinated, tested?
Biden said employees will receive paid time off “for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.”
But the guidance was less clear as to whether unvaccinated employees will be afforded the same leeway.
According to Fisher Phillips, the rules will have to comply with wage and hour laws, which say “time spent on receiving employer-required tests should almost always be treated as compensable.” The current guidelines from the Department of Labor also say employers are required to pay workers for time spent getting tested for the coronavirus.
That could include also getting paid for the time it takes to get tested on their day off, the law firm said.
But according to Seyfarth, the law is a little muddled in that regard.
“It is far less clear whether an employee must today in all states be compensated for the time and expense of testing or for vaccination outside of their normal work hours, even when required by employer policy,” Seyfarth said.
Does Biden’s mandate impact remote workers?
According to Seyfarth and Fisher Phillips, the Department of Labor has made it clear that OSHA’s Emergency Temporary Standard will not apply to remote workers provided they don’t come into the office.
That’s because “OSHA’s province is workplace safety and employee exposure to hazards” and doesn’t extend to employees working from home, Seyfarth said.
How will the 100-employee threshold be counted?
It wasn’t immediately clear how labor officials would count the 100-employee threshold for employers, whether it be “on a per location or company-wide basis,” Fisher Phillips said.
But legal experts correctly speculated that, given the scope and desired outcome of Biden’s vaccine and testing requirement, the standard will be applied “as broadly as possible,” Nixon Peabody said.
According to Littler, OSHA has since indicated it will be interpreted to mean 100 or more employees in a given enterprise — not per work location.
How does the rule affect states with their own OSHA plan?
There are 22 states or territories in the U.S. with their own OSHA-approved plans covering employees in the private and public sectors, including California, Kentucky, North Carolina, South Carolina and Washington.
There are an additional five states, including Illinois and New York, with OSHA plans that only cover public employees.
OSHA doesn’t have jurisdiction where there are state plans, Littler said, but the state rule “must be at least as stringent as federal standards.”
According to Nixon Peabody, that means state OSHA plans have to either adopt the federal rule or institute a similar one that is “at least as effective” as its federal counterpart.
“The ETS does not limit state or local mandates or guidance that are not inconsistent with the ETS and that may be further reaching than the new federal standard,” the firm said, “nor does it preempt the additional enforcement powers that states have.”