By Kelley Barnett, Vice President, Corporate Counsel-Labor and Employment at AmTrust Financial

On October 12, nearly a month after President Biden directed the Occupational Safety and Health Administration (OSHA) to issue a rule mandating COVID-19 vaccinations or weekly testing for all private sector businesses with 100 or more employees, OSHA finally submitted an emergency temporary standard (ETS) to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. The ETS has not yet been made available to the public and OIRA’s review process could take days, weeks or months. But once the ETS is finalized and published by the Federal Register (the federal entity responsible for publishing federal government rules and regulations), the ETS could take effect immediately.

Can Employers Require a COVID-19 Vaccine?

As reported in various media outlets, several businesses have decided not to wait for the ETS to be finalized and are already taking steps to mandate employee vaccinations or weekly testing. Some states have imposed bans on COVID-19 vaccine mandates, although legal challenges to those bans are expected. According to federal government agencies and recent court rulings, however, vaccine mandates are legal, subject to exceptions for employees who object due to certain disabilities and religious beliefs. Earlier this year, the U.S. Equal Employment Opportunity Commission and Department of Justice both officially took the position that vaccine mandates – even for those vaccines which are authorized for emergency use only – are legal and can be imposed by employers.

OSHA COVID-19 Vaccine Mandates

Whether OSHA’s ETS will withstand the expected legal challenges remains to be seen. But while the outcome of those legal challenges may impact the federal government’s ability to force vaccine mandates on businesses, the outcome of those challenges should not impact the legality of a business’s voluntary decision to impose vaccine mandates or testing on employees. So, for the most part, businesses that voluntarily decide to implement vaccine mandates or testing policies before the ETS is finalized can legally do so.

How Can Businesses Prepare for the OSHA ETS?

Many businesses are waiting to review the details of the ETS before making any policy changes. Nonetheless, businesses can and should begin preparing now for the forthcoming ETS, since the issuance and enforcement of the ETS – which comes with potentially hefty penalties – could happen any day now. Steps businesses can take now to prepare include:

• Determining employee vaccination status and deciding what kind of proof to require
• Figuring out whether to host onsite vaccination or testing clinics
• Developing procedures for tracking weekly test results
• Establishing written policies for maintaining the confidentiality of employee vaccination status and test results
• Drafting vaccination or testing policies
• Establishing procedures for handling employee requests for religious and disability accommodations

Businesses should also consider strategies for dealing with employees who refuse vaccination or testing and the implications for private businesses with unionized workforces. Some preparation now can help businesses avoid administrative and costly compliance headaches later.

Join Us November 16 for a Webinar on the OSHA ETS

To learn more about what steps businesses can take now to prepare to comply with the ETS, tune into AmTrust’s complimentary webinar, COVID-19 Vaccine Mandates and Testing Requirements in the Workplace: What Do All Private Sector Businesses Need to Know and How Can They Avoid Legal Pitfalls?, on November 16 at 2:00 p.m. EST. Stay tuned for information about how to register for this event.

Kelley Barnett is the sole labor and employment attorney for AmTrust Financial Services. She is a key legal and business advisor to the AmTrust executive team and AmTrust businesses in the U.S., U.K. and Europe on employee relations matters including EEOC, ADA, FMLA, FLSA, UK Employment Rights Act and Working Time Regulations and more. Prior to joining AmTrust, Kelley’s private practice included counseling and representing employers, contractors, subcontractors, project owners and property owners on a wide variety of OSHA issues, including training, compliance, OSHA inspections, accident investigations and OSHA and OSHA-approved State Plan enforcement proceedings. Kelley is also OSHA 30 certified.

This material is for informational purposes only and is not legal or business advice. Neither AmTrust Financial Services, Inc. nor any of its subsidiaries or affiliates represents or warrants that the information contained herein is appropriate or suitable for any specific business or legal purpose. Readers seeking resolution of specific questions should consult their business and/or legal advisors. Coverages may vary by location. Contact your local RSM for more information.