New York, N.Y. (September 10, 2021) – On September 9, 2021, in response to growing case counts and lagging vaccination rates, the Biden administration announced its COVID-19 Action Plan, laying out a "path out of the pandemic." The centerpiece of the president's announcement is a new employee vaccination mandate for all private sector employers with at least 100 employees.

Specifically, the Action Plan directs the Occupational Safety and Health Administration ("OSHA"), the agency within the Department of Labor responsible for setting safety and health standards for many employers, to develop a new rule requiring all large employers to ensure their workforces are fully vaccinated. Alternatively, any employees who remain unvaccinated will be required to produce a negative test result on a weekly basis prior to coming to work. The administration anticipates that this new rule will affect over 80 million employees in the private sector.

Initially, OSHA will issue an Emergency Temporary Standard ("ETS") to implement the mandate. Because the ETS has yet to be issued and draft language has not been released to the public, numerous questions remain unanswered, including:

  • Whether an at-home rapid test is sufficient for unvaccinated workers to meet the testing requirement
  • Whether employers or unvaccinated employees will shoulder the cost of weekly testing
  • Whether the 100-employee threshold applies to individual locations, companies, or companies and their subsidiaries and related entities
  • Whether the 100-employee threshold includes independent contractors
  • Whether any types of employees or industries will be exempt from the mandate

In addition to the large employer vaccine mandate, the comprehensive six-point plan covers the spectrum of federal agencies and employees, schools, health care providers, and large entertainment venues. It also proposes additional federal financial assistance to businesses, including revisions to the Small Business Administration's Economic Injury Disaster Loan program and the Paycheck Protection Program.

There is currently no timetable for OSHA's release of the ETS, and litigation over the existence and scope of the proposed requirements appears likely. That said, employers should promptly review their operations and develop policies and procedures to ensure compliance.

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