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Navigating OSHA's Vaccine Mandate

What is the mandate, and how will it be enforced?

After several months of anticipation, the COVID-19 vaccine federal mandate is finally here.

In his September 9th speech, President Biden announced the enactment of a new OSHA emergency temporary standard (ETS) regarding COVID-19 protocols. Private sector businesses with 100 or more employees are required to ensure their employees are either fully vaccinated, or produce a weekly negative COVID-19 test before coming to work. Covered employers are also required to provide paid time off to employees to get vaccinated and recover from any post-vaccination symptoms.

OSHA is expected to face steep challenges to enacting this mandate, both due to the sheer volume of affected workers (over 80 million) and the political nature of the topic. Lawsuits have already been threatened by several state governors, with more legal challenges expected.

From a regulatory perspective, OSHA officials will proceed with the new mandate under the authorities granted to them, including the right to enact an emergency temporary standard (ETS).

What is the Emergency Temporary Standard (ETS)?

Section 6 of the OSH Act of 1970 grants OSHA the right to enforce what is known as an emergency temporary standard, or “ETS”. The criteria for an ETS is set under Section 6(c)(1), which grants the Secretary of Labor (currently Marty Walsh, former mayor of Boston) the authority to announce an ETS if two determinations are met.

Those two determinations are: that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that the enactment of the emergency standard is necessary to protect employees from danger.

There is currently a Healthcare ETS in place, enacted back on January 21, 2021. This was made to ensure sufficient protection for healthcare workers, and only applies to workplaces in which any employee provides healthcare services or healthcare support services.

How will this mandate affect my workplace?

Again, this mandate applies to private businesses with 100 or more employees. Smaller workplaces do not need to comply with this mandate, although standard health and safety measures still apply.

It is possible that the mandate requirements will be altered in the near future. In addition to the challenges mentioned above, there are several key points that need clarification. These include the question of exactly how OSHA intends to enforce the mandate, and whether federal funding will be provided to employers to cover the cost of paid time off (for receiving the vaccine and recovering from any symptoms).

COVID-19 has created many challenges for businesses, and this new mandate is no exception. But Risk Consultants is ready to answer any questions you may have to the greatest extent possible!

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