Client Alert: Private Businesses With At Least 100 Employees Must Soon Mandate Vaccination Or Weekly Testing
Written by: Susan L. Swatski
On September 9, 2021, President Biden announced a six part “Path Out of the Pandemic” plan which requires private-sector businesses with at least 100 employees to mandate that employees get vaccinated against the Coronavirus or submit to weekly testing. The Occupational Safety and Health Administration (“OSHA”) will soon issue emergency temporary standards (“ETS”) to address how the mandate will be enforced and what exemptions may apply.
When the mandate will become effective has yet to be determined, but we do know that employers should begin to prepare as it could take effect in as soon as thirty (30) days. Once implemented, the mandate will remain in effect for until December 31, 2021 to allow OSHA time to subject the mandate to the formal rulemaking process, which includes public comment.
To prepare for the mandate, employers should do the following:
1. Encourage employees to voluntarily vaccinate;
2. Prepare for requests for accommodations, i.e. religious exemptions (need not be supported by a formal religious group) and disability exemptions (a bona fide medical reason not to vaccinate); and,
3. Determine whether the business should require all employees to vaccinate or to allow weekly testing as an alternative. Considerations include:
a. The cost of administering and validating weekly test results;
b. The number of employees who will terminate their employment rather than vaccinate or submit to weekly testing;
c. Whether to pay employees for their testing time; this issue is likely to be addressed by the ETS and/or a New Jersey Executive Order; and,
d. The timing of testing, i.e. will testing take place during the workday; how will testing impact productivity.
We encourage employers to seek legal assistance to prepare for the ETS and to ensure that your business has the policies and procedures in place to implement the mandate with minimal business disruption. If you have any questions or if you require assistance to help your business navigate this challenging time, please contact the author of this Alert, Susan L. Swatski, Esq. for additional information or to discuss your specific employment-related circumstances.
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