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President Biden and OSHA to Require Vaccine Mandate or Weekly Testing for Employers with 100+ Employees

By Kevin Cloutier, Shawn D. Fabian & Elizabeth Rowe on September 10, 2021
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On September 9, 2021, the White House released a memorandum titled “Path Out of the Pandemic,” which detailed President Biden’s COVID-19 Action Plan.  The memorandum contains six priorities for combatting the COVID-19 pandemic, including a requirement that all employers with 100 or more employees must implement a vaccine mandate and/or require weekly testing of unvaccinated workers.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is in the process of developing a rule to require employers of 100 or more employees to either: (1) require an employee be fully vaccinated or (2) require an employee who remains unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  OSHA will soon issue an Emergency Temporary Standard (ETS) implementing this rule.  OSHA will also develop a rule requiring these employers to provide paid time off to employees for the time spent getting vaccinated or recovering post-vaccination.

The announcement is part of the President’s first priority, “Vaccinating the Unvaccinated”, wherein the President announced he would “us[e] regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements[.]”  Alongside the announcement of OSHA’s new rule, the memorandum also announces that President Biden has signed Executive Orders requiring all federal executive branch workers be vaccinated as well as all employees of federal contractors.

The President’s memo can be found here.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay, and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.

Photo of Kevin Cloutier Kevin Cloutier

Kevin Cloutier is a partner in the Labor and Employment and Business Trials Practice Groups.  Kevin is the Leader of the Firm’s Non-Compete and Trade Secrets Teams.

Read more about Kevin CloutierEmail
Photo of Shawn D. Fabian Shawn D. Fabian

Shawn Fabian is a partner in the Labor and Employment Practice Group in the firm’s Chicago and New York offices.

Read more about Shawn D. FabianEmail
Elizabeth Rowe

Elizabeth M. Rowe is an associate in the Labor and Employment Practice Group in the firm’s Chicago office.

Read more about Elizabeth RoweEmail
  • Posted in:
    Employment & Labor
  • Blog:
    Labor & Employment Law Blog
  • Organization:
    Sheppard, Mullin, Richter & Hampton LLP
  • Article: View Original Source

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