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September 13, 2021

U.S. Will Impose COVID Vaccine Mandate On Businesses With 100 Or More Workers

U.S. President Joe Biden announced a sweeping set of new policies to combat the coronavirus last week. One of the most significant parts of the president’s plan requires the Occupational Health and Safety Administration (OSHA) to write an Emergency Temporary Standard (ETS) that will require all businesses with 100 or more employees to either ensure their workforce is fully vaccinated or to require workers who remain unvaccinated to produce a negative COVID-19 test once a week.

Companies that are federal contractors would have to require employees to take the vaccine as a condition of employment — there would be no testing option.

Employers also will have to provide paid time off for workers to get vaccinated and for recovery if they suffer from vaccination side effects. Businesses will be fined $14,000 per violation if they do not comply.

While it is unclear when these requirements will go into effect, it is likely to be weeks and not months. Unlike normal regulations where there is a notice and comment period before implementation, an OSHA ETS takes effect immediately upon publication except in states that have their own workforce safety plans. These 22 states, outlined here, will have 30 days after publication to adopt an equally protective policy or implement the federal ETS.

A public comment period to write a more permanent standard will begin once the ETS is published. The emergency standard is valid until that permanent regulation can be put into place. (That work is required to be done within six months.)

The White House estimated the requirement will impact approximately 80 million workers in private sector businesses. The U.S. Chamber of Commerce believes the new policy could affect more than 110,000 businesses. The law firm Venable provides additional analysis here.

The president also called on venues like sports arenas, concert halls, and other places where large groups of people gather to require that patrons be vaccinated or show a negative COVID-19 test in order to enter. He did not specify what occupancy level qualifies as “large.”

Read the president’s full plan here.

Some state government leaders already have made it clear that they intend to challenge the Biden administration’s vaccine mandate, so litigation is likely.

If these requirements move forward, MSCI and its partners at other business trade associations will work to ensure the ETS is structured in a way that does not negatively impact business operations and does not impose undue compliance costs on employers.

In related news that could impact business travelers, last week the U.S. Department of Homeland Security announced it had increased the range of civil penalties that may be imposed on individuals who violate the federal mask mandate at airports, on commercial aircraft, and in various modes of surface transportation, including passenger railroads and public transportation. The new range of penalties, which took effect September 10 will be $500 to $1,000 for first-time offenders and $1,000 to $3,000 for second-time offenders. The federal mask mandate for transportation will remain in effect until at least January 18, 2022. Read more here.