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New Rules for Large Employers on Employee COVID-19 Vaccination

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| Legal Advisory

On September 9, 2021, as part of its six-pronged “Path Out of the Pandemic,” the White House announced a series of new COVID-19 vaccination requirements focused on large employers. President Biden has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring all businesses with 100 or more employees to ensure that all employees are fully vaccinated or undergo testing on at least a weekly basis. This new requirement is expected to impact over 80 million workers in private sector businesses. OSHA has indicated that it will issue an Emergency Temporary Standard to implement the requirement “in the coming weeks.”

Additionally, as part of the new rule, OSHA is developing a requirement that large employers with 100 or more employees provide paid time off to employees in order to obtain the vaccine and/or recover from the side effects of the vaccine.

Employers have raised questions about the 100-employee threshold, the logistics of regular testing, the proper protocol for handling exemption requests, and the timeline for compliance. The publication of the new rule is expected to provide additional clarity to employers who are looking for guidance on how to implement the new requirements. In the meantime, employers should begin to develop a vaccination policy and plan for implementation in order to become compliant with the new rule as soon as possible once it is issued. Among the issues for employers to consider:

  • Whether to mandate vaccines across the board or offer a weekly testing option
  • If allowing for regular testing, the costs associated with testing and the type of test(s) that will be accepted
  • Designation of an individual to handle exemption requests and understanding confidentiality requirements with regard to such requests
  • Scheduling logistics and time off requests for employees’ use of PTO to become vaccinated

While we cannot be certain of the specific measures that will be required until the rule is finalized, employers are well advised to use this period to get a head start on the process with the information currently available while waiting for OSHA’s guidelines.

This advisory was prepared by Nutter’s Labor, Employment and Benefits practice group. For more information, please contact any member of the LEB group or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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