OSHA Tasked with New Rulemaking to Require Vaccine and Testing Requirements for Private Sector Employers with 100+ Employees


On September 9, 2021, the Biden Administration announced sweeping vaccination and testing requirements for federal government workers, federal contractors, and private sector employers.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is being tasked with issuing an emergency temporary standard (ETS) that will require private sector employers with 100 or more employees to ensure their workforces are either fully vaccinated or tested weekly for COVID-19. The ETS will also require these covered employers to offer paid time off for vaccination and to recover from any side effects. OSHA will have the ability to fine noncomplying businesses up to $14,000 per violation. As of now, it is unclear when OSHA will issue the ETS or exactly what the ETS will provide.

President Biden is also expected to sign an executive order requiring vaccination for all federal executive branch employees and federal contractors, without the option of regular testing as an alternative. There will be limited exceptions to the executive order, including disability and religious accommodations. The Centers for Medicare and Medicaid Services will also expand emergency regulations and require vaccination for health care workers in most health care facilities that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others. President Biden has additional plans, including vaccination of staff in head start programs, among other requirements.     

The guidance for employers relating to vaccination requirements is complex and changing rapidly. We will continue to monitor and update you on a regular basis. If you have questions about this or any other workforce issue, please do not hesitate to contact your relationship attorney or one of Honigman’s Labor & Employment attorneys.

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