Last month, President Biden unveiled the administration’s “Path Out of the Pandemic” Plan. It is, as the administration framed it, a comprehensive plan to combat the COVID-19 variants and to save lives in the coming months—all while keeping our schools and economy open. At its core are the rudiments of a vaccine mandate for certain businesses. But left undefined—at least for now—are the particulars of how a mandate will work. Whether good, bad, or neutral, there is much to discuss.
Vaccine Mandate for Businesses. President Biden directed OSHA to issue a rule requiring businesses with 100 or more employees to ensure that all employees either vaccinate or submit a negative test weekly. The administration estimates that this requirement will impact over 80 million workers. It is unclear what exceptions, if any, will be made for individuals who work remotely.
OSHA’s mandate will take the form of an Emergency Temporary Standard (ETS). Unlike OSHA’s pandemic guidelines (which are only guidelines), an ETS is a binding rule that OSHA may promulgate to protect workers against a “grave danger” in the workplace. An ETS will have the force of law, immediate effect, and will last for six months, unless superseded by a permanent regulation. Since its inception in 1971, OSHA has promulgated only two ETS rules: one in 1983 to combat asbestos and one this past June to regulate the healthcare industry’s approach to COVID-19 in the workplace. An ETS is a novel power, reserved only for exceptional circumstances.