Under a new plan announced by the Biden administration to curb the spread of the pandemic, all employers with 100 or more employees must require their workers to get the COVID-19 vaccine or produce a weekly negative test result before coming to work.
The plan comes as the highly contagious Delta variant continues to ravage the unvaccinated, with many American employers already implementing or preparing to implement vaccination mandates. The new federal rule, which is being drafted by the Occupational Safety and Health Administration (OSHA), will require all large employers to institute such a mandate.
The rule will also require businesses to give workers paid time off to get vaccinated and recover from any vaccine side effects.
All the details of the new rule will become available once it goes into effect. In the meantime, here's what you need to know about how the new rule will affect you.
The rule will be prepared and enforced by OSHA, a federal agency housed in the Department of Labor. OSHA's purpose is to ensure safe and healthy working conditions through the Occupational Safety and Health Act, a law that requires employers to maintain workplaces free from hazards likely to cause death or serious injury.
The new rule will apply to all employers with 100 or more employees. The 100-employee threshold will be counted on a company-wide basis, rather than being tallied location by location. It's estimated that the rule will impact 80 million workers, or more than two-thirds of the country's workforce.
The rule will cover employers in every industry, including those that traditionally aren't accustomed to interacting with OSHA, such as insurance companies, financial institutions, and law firms.
Remote workers probably won't be covered by the new rule. Labor Department officials have indicated that the rule likely won't apply to remote workers as long as they don't come into the workplace.
Employers who fail to implement the new standards will be subject to fines of up to $14,000 per violation. While the details of the plan are not yet clear, this likely means that employers will be fined up to $14,000 for each facility inspected by OSHA that has not implemented a mandatory vaccine policy or otherwise complied with the new rule.
While there is currently no deadline for OSHA to prepare the new rule, Labor Department officials have indicated that the rule will likely be issued in a matter of weeks. The rule will take the form of an "Emergency Temporary Standard" (ETS), which, as its name suggests, is a temporary rule that can remain in place for up to six months. After that time, it must be replaced by a permanent OSHA standard, which will have to undergo a formal rulemaking process.
Private-sector employers generally can require their employees to get a COVID-19 vaccination as a condition of employment, as long as employers consider requests for exemption on disability or religious grounds. Many states also have vaccine mandates; for example, state laws may require health care workers to be vaccinated against COVID-19 as well as diseases like the flu. And the federal government has the legal authority to issue health and safety protections for workers.
Vaccination mandates at the federal level, however, have never been tested. Due to the fierce politicization of vaccines in the U.S., the new federal mandate is certain to face legal challenges. Courts considering such challenges will likely weigh questions of personal choice against the public health risks of a deadly pandemic. Courts will probably find it significant that the weekly testing option gives employees the ability to opt out of mandatory vaccination.