The Biden Administration recently announced the “Path Out of the Pandemic” plan. Among other requirements, this order directs OSHA to develop requirements for all employers with 100 or more employees to implement a vaccine mandate or require weekly testing before coming into the workplace or face a penalty of up to $14,000 per violation. Employers under this rule will also be required to give PTO in order to get vaccinated or recover from any post-vaccination side effects.
Since OSHA will be responsible for rulemaking and enforcement, all employers subject to OSHA must comply with the Emergency Temporary Standard (ETS) when it is released.
The ETS will likely be issued in the next few weeks, so we don’t yet have specific information on how the threshold is to be calculated. However, based upon other rules and comments from the DOL, it is believed that the determination of 100 or more employees will be based on the total number of employees on a company-wide basis (as opposed to a per-location basis).
The DOL has also confirmed that remote employees not coming in contact with other employees would not be covered under the rule as long as they do not enter the workspace. However, remote employees would likely be included in the 100+ employee threshold calculation.
While this is out of the area of health plan compliance, it relates to the decision to further encourage employees to be vaccinated with incentives tied to the group health plan. As a reminder, any financial rewards or surcharges tied to the health plan would likely be subject to the wellness program rules under HIPAA, the ADA and GINA.
Thus, while we await the ETS from OSHA, employers should start preparing now for the implementation of vaccination policies, including any additional financial incentives.
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