On September 9, 2021, the Biden Administration announced a comprehensive national strategy to combat COVID-19. As part of this strategy, President Biden signed Executive Orders implementing new rules for federal employees and employees of federal contractors. Additionally, the Department of Labor's Occupational Safety and Health Administration (OSHA) will develop a new rule requiring all employers with 100 or more employees to ensure that each employee either gets vaccinated against COVID-19 or produces a negative test result on at least a weekly basis before coming to work.
While the announcement itself does not impose any immediate requirements for covered employers, OSHA is expected to issue its rule in the form of an Emergency Temporary Standard (ETS) in the coming days. An ETS imposing this requirement on employers would take immediate effect upon publication in the Federal Register and would remain effective until it is superseded by law, no later than six (6) months from the date of publication. It is anticipated that the ETS will provide large employers with a specific date by which it ensures its workforce is compliant with these new requirements.
An employer that is “adversely affected” by such an ETS can raise a legal challenge to its validity by filing a petition for a judicial review of the ETS with the U.S. Court of Appeals where their principal place of business is located, but they must do so within sixty (60) days after the ETS is published in the Federal Register. Importantly, filing a petition will not absolve an employer from complying with the ETS’s requirements.
In light of this announcement and the nature of an ETS, employers with more than 100 employees should keep a close eye on OSHA’s activities. Because an ETS will take immediate effect upon publication, covered employers should begin working with legal counsel to formulate policies that ensure compliance with the anticipated rule. Employers can begin outlining policies that are appropriate for their workforce by weighing various economic and non-economic factors and accounting for any unique circumstances that may apply
Please direct any questions to Gunster’s Labor and Employment practice group.
Roger Feicht is a litigator who focuses his practice defending and prosecuting employment related lawsuits. Roger represents employers and employees in litigation relating to allegations of discrimination and harassment, and disputes over non-competition or non-solicitation agreements.
Riley Kennedy is an associate in the firm’s Labor & Employment practice.
Prior to joining the firm, Riley primarily represented health care providers and practices in medical malpractice cases. He is also experienced in assisting clients facing litigation brought under the Employee Retirement Income Security Act (ERISA) and has disposed of claims brought in commercial and general liability contexts.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
