President Joe Biden declared a six-part plan to mandate a COVID vaccine

 

 President Joe Biden declared a six-part plan to mandate a COVID vaccine

 President Joe Biden announced a six-part plan to combat the spread of the coronavirus -- including a universal vaccine and testing requirements for millions of American workers.

Biden's "Road Out of the Pandemic" book calls on the Department of Labor's Occupational Safety and Health Administration to draft a rule requiring workers at companies with 100 or more employees to be vaccinated or take a weekly COVID-19 test.

OSHA rule as an Emergency Standard, or ETS.

But the mere advertisement left much to materialize, with major law firms and legal experts struggling to interpret the little information they had.

Labor and hiring companies are now looking for answers based on the Occupational Safety and Health Administration's record and information flowing from senior officials.

Here's what we know.

What is the OSHA timetable for ETS implementation?

According to Littler Mendelson P, until the coronavirus pandemic, OSHA — which oversees workplace health and safety regulations — had not issued an interim emergency standard since 1986.

According to Seyfarth Shaw LLP, the agency released its first COVID-related electronic testing services this summer, which took "nearly six months and involved more than 40 stakeholder meetings," according to Seyfarth Shaw LLP.

The following rule is expected to take significantly less time, but answers vary when it is ready.

Labor Department officials have hinted that it will be released in "the coming weeks," according to Fisher Phillips LLP. It won't last for another 30 to 60 days, Ashley Brightwell, an attorney at Alston & Bird in Atlanta, told the Society for Human Resources Management, while Littler said it could take two to eight weeks.

These rules become effect once published in the Federal Register - a collection of current regulations, including presidential documents, proposed rules and regulations, and notices.

States with their own OSHA plans will have 15 to 30 days to adopt the federal rule or implement a similar direction.

How long will the Temporary Emergency Standards last?

According to Nixon Peabody LLP, the Occupational Safety and Health Administration (OSHA) will issue an ETS "to address a specific safety issue appropriately" Nixon Peabody LLP. This means that the rule is subject to a rapid review process that is not subject to the typical public comment period.

Fisher-Phillips said the ETS could remain in effect for up to six months. After that, it must be replaced by a permanent OSHA rule under the formal rule-making process.

According to Littler, the ETS can be in effect for a shorter period if challenged or remains in court.

Who will pay for regular COVID testing?

The question of who pays for testing unvaccinated workers every week remains unanswered.

According to Ogletree Deakins, OSHA has historically favored "the idea of ​​making employers pay for safety-related actions." But the Charlotte law firm said companies might require employees to pay for their COVID-19 tests as an incentive to get vaccinated.

Fisher-Phillips said the cost of those tests might be covered by insurance, while some states have laws that say employers must cover the cost of mandatory medical tests or reimburse their employees for them.

Meanwhile, Biden said significant retailers would sell rapid at-home tests at cost for at least the next three months. Littler said free testing sites at retail pharmacies would also be expanded.

Will employees get paid to get vaccinated and tested?

Biden said employees will get paid leave "for the time it takes workers to get vaccinated or to recover after vaccination."

But guidance was less clear as to whether unvaccinated employees would be given the same leeway.

According to Fisher-Phillips, the rules must comply with wage and hour laws, stating that "time taken to receive tests requested by an employer must always be treated as compensable." Current guidance from the Department of Labor also states that employers must pay workers for the time they spend testing for the coronavirus.

The law firm said that this could also include getting paid for the time it takes to take the test on their day off.

But according to Seyfarth, the law is a bit messy in this regard.

"It is unclear whether today in all states an employee should be compensated for testing time and expenses or vaccinations outside normal business hours, even when employer policy requires," Seiffarth said.

Does Biden's decision affect remote workers?

According to Seyfarth and Fisher Phillips, the Department of Labor has clarified that the OSHA temporary emergency standard will not apply to a remote worker.

Provided they do not come to the office.

That's because "OSHA County is workplace safety and employee risk exposure" and doesn't extend to employees working from home, Seyfarth said.

How will the threshold of 100 employees be calculated?

Fisher-Phillips said it wasn't immediately clear how labor officials would calculate the 100-employee threshold for employers, whether "on a per-location or company-wide basis."

Nixon Peabody said legal experts correctly predicted that the application would be implemented given the scope, desired results of Biden's vaccine, and testing requirements.