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OSHA to Enforce COVID-19 Vaccine Mandates

Monday, September 13, 2021
OSHA to Enforce COVID-19 Vaccine Mandates

On September 9, 2021, President Biden announced his 6-pronged approach to deal with COVID-19. Through a combination of executive orders and an expedited rulemaking process referred to as an emergency temporary standard, the administration is requiring all federal employees (with the exception of postal workers) and employers with more than 100 employees to be vaccinated or tested weekly for COVID-19. This is a landmark order as it is the first time the U.S. government has ordered private employers to mandate a vaccine of any type.

Timing of an emergency temporary OSHA standard is vague as Biden stated he expects to see a draft standard within “several weeks” of his announcement. Emergency temporary standards allow the administration to bypass the traditional rulemaking process. Earlier this year, the Biden administration issued an extremely complex emergency temporary standard for COVID-19 exposure in healthcare and related settings.

It is not yet known how complex this new emergency temporary vaccination standard might be. Still, the main focus of the standard will be to require vaccination, or weekly testing, of all employees of private companies that employ 100 or more persons. Other provisions include mandatory pay for employees to get the vaccine or assist family members in getting theirs.

Employers who were previously agnostic requiring employees to get the COVID-19 vaccine must now consider how they will implement programs designed to comply with the anticipated standard.

From a risk management perspective, there are many questions about the unintended consequences of this order. First, employers may be potentially exposed to wrongful termination claims following termination of employees who refuse to take the vaccine or comply with weekly testing requirements. A study recently completed by the Society for Human Resource Management (SHRM) showed 28% of employees would refuse the vaccine even if it means they will lose their job. Because some employees feel so strongly about this issue, it is expected many will file wrongful termination suits. Employers should ensure they have robust employment practice liability insurance policies to help cover the defense costs of suits brought against them.

As U.S. employers struggle to hire for 10 million unfilled job openings, refusal of the vaccine by 28% of the country’s private workforce may mean a drastic increase in the number of unfilled job openings and a further strain on the economy. States are currently addressing whether or not employees who lose their jobs because they reject the vaccine will be allowed to collect unemployment compensation. If terminated employees receive unemployment benefits for rejecting the vaccine, there won’t be much motivation to get the vaccine and return to work, significantly adding to the number of unfilled job openings.

While there are many more unanswered questions associated with this mandate, there are some things employers can do now to partially ease the burden of what might come:

  • Encourage voluntary vaccination
  • Develop and implement programs designed to prevent the transmission of COVID-19 in the workplace
  • Offer to cover the employee’s time required to get the vaccine
  • Identify where employees can be vaccinated or be tested for COVID
  • Make sure you have a robust employment practice liability policy
  • Contact a qualified labor attorney to review all COVID related policies

As with all OSHA requirements, violations of a COVID-19 vaccine standard will result in financial penalties assessed to the employer. The penalties could range from just under $14,000 per violation to just under $140,000 for violations identified as willful. A “willful” citation is issued to employers who knowingly violate an OSHA standard. It would be difficult for an employer with more than 100 employees to argue they didn’t know about such a publicized OSHA standard. I expect the administration and OSHA to make examples of non-compliant employers to bring greater attention to the new requirement.

The Horton Group is following these developments closely and offering informational webinars on the subject, including one focused on what an emergency temporary OSHA COVID-19 vaccine standard might look like. Please join us on September 24 for this webinar.

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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