President Biden has just announced that he is tasking OSHA with implementing a new emergency rule mandating that employers with at least 100 employees either require their workforce to be vaccinated or require unvaccinated employees to produce a negative COVID-19 test every week. Details are still very scant, but it does not appear that the rule will require employers to actually administer the tests. Instead, the onus will be on unvaccinated employees to get tested and submit the results.
Because the rule will be adopted as an emergency temporary standard, the adoption process will be expedited and will not involve a period for public comment. Nonetheless, given that OSHA’s emergency COVID-19 rule for healthcare workers required six months to develop, it’s possible that the new emergency rule may not take effect until toward the end of this year.
The impact of the new emergency standard on unionized employers is somewhat uncertain at this point. Unionized employers are not obligated to bargain over compliance with legal requirements, but may be required to bargain over the effects. In the context of the new emergency rule, for example, unionized employers may have to bargain over how unvaccinated employees will be treated if they fail to submit a negative COVID-19 test (i.e., termination, suspension, paid leave, unpaid leave, etc.) and/or how religious exemptions to a vaccination requirement will be handled.
We’ll provide additional updates as more information becomes available.
Bottom Line: OSHA’s vaccine mandate does not necessarily excuse employers from an obligation to bargain over the effects of the mandate on the bargaining unit. Accordingly, employers must carefully review and understand this new standard before unilaterally implementing a broad vaccine policy.