How does your business stand to be impacted by the recent Biden COVID-19 Action Plan announcement? Let us know by taking this quick survey.

We have received lots of questions about President Biden’s Action Plan and potential penalties. We are working with the US Chamber of Commerce to learn exactly what it means and how it will apply to businesses. It is important to note that no rules have been promulgated yet, so we know no details at the time of writing this post.

Most of our Chamber investors will probably not meet the 100+ employee requirement proposed by President Biden and OSHA, but as you’ll see in the “unknowns” list below, it could pull many more businesses into the dragnet depending on how the feds define subcontractors and 1099 employees in the final proposals.

To summarize the Biden plan, there are two major issues that will impact private employers:

1) OSHA will create a temporary standard that will require private businesses with more than 100 employees to ensure their employees are vaccinated or require weekly testing. Penalties include a $14,000 fine per violation.

2) Those same businesses are required to give up to 2 days off for paid time off to get the vaccine and recover from any side effects.

The other vaccine requirements will impact federal employees, businesses with federal contracts (and subcontractors), and medical facilities that get Medicare and Medicaid reimbursement (hospitals, nursing homes, dialysis centers, etc.). The White House issued a summary here: https://www.whitehouse.gov/covidplan/

Couple of important notes: These emergency temporary standards are not normal rules, but special authority for OSHA and are “interim final rules” that take effect immediately – kind of like the pending ordinance doctrine at the local level. In 6 months, there will have to be some sort of normal OSHA rulemaking process on the issue with public comment and the like. The temporary standard will take effect as soon as it is published in the Federal Register. No idea when that will be. The temporary standard will sunset after 6 months unless it is replaced by a formal rule. As to the other executive orders, we’ll see when the executive orders are issued, because EOs are indefinite.

The U.S. Chamber believes 110,000 employers nationwide will need to comply with the requirements IF they take effect. Legal experts are expecting courts to rule on this quickly and several lawsuits have already been announced. There are a number of unknowns on this at this time such as:

• Does it apply to subcontractors who work for a company that has 100+ employees?
• Does a subcontracting workforce (1099 employees) bump you up over 100+ employees?
• What about companies that have a large stay-at-home workforce?
• Will there be liability protections for employers if there is a problem with vaccines?
• What are the liability issues if you don’t follow OSHA’s requirement (apart from the fine)?
• Will the feds pay for the weekly testing for employees, or does the employer or employee have to pay?

As with any federal rule, the devil is in the details. Neil Bradley at the US Chamber has been in contact with the White House and spoke with the Secretary of Labor raising the practical issues that we believe this could cause employers. The Secretary said he wanted to hear from employers and the Chamber to gather problems and questions. The US Chamber said they will work to make sure that if this survives the court challenge, they will make sure it will be as least onerous as possible.

The Greenville Chamber’s Advocacy Committee met Friday and did not take an immediate position, waiting to see what the details are and what the court challenges might look like. The official US Chamber position is that “if this takes effect, we’re focused on making this least burdensome as possible on employers.” We told The Greenville News last week that, “this is extremely early and while we’re concerned about the mandate, we’re working to gauge the opinions of our members and waiting for the final details from OSHA.”

Please take this survey and let us know how you believe this will impact your business. You may also send comments to a[email protected].

Here are some additional questions and answers from our partners at Ogletree Deakins:

What is the timing on the ETS?

OSHA said the new COVID-19 emergency temporary standard (ETS) requiring vaccinations or weekly testing will be out "within weeks."

What is in in the ETS?

We don't know yet. What we do know is that the ETS will require all employers with more than 100 employees to require their employees to be either fully vaccinated or subject to testing at least once per week. (The federal employee, contractor, and health care worker mandates are contained in separate executive orders and won't go through OSHA.)

What happens after the ETS is published?

The ETS will take immediate effect upon publication in the Federal Register. 29 USC 655(c)(1). OSHA does not have to provide public notice or opportunities for comment before doing so. The ETS procedure skips those usual steps for rule-making.

How long will the ETS last?

The ETS will be effective until superseded by standard promulgated through proposed rule-making and the publication of the ETS commences that process as well, which must be done within six months after publication of the ETS.

Will the ETS require employers to pay for vaccinations and for related time off?

Since the ETS for healthcare requires healthcare employers to do so (see 29 C.F.R. 1910.502(m)), OSHA will likely require the same of all employers covered by this new ETS.

What about payment for testing and paid leave for testing?

That is a harder question to answer. Historically, OSHA has favored the idea of making employers pay for safety-related measures and its healthcare ETS has similar provisions.

What must the ETS show?

The ETS must show OSHA has determined that employees are exposed to “grave danger” and the ETS is necessary to protect employees from that danger. 29 USC 655(c)(1).

Will there be court challenges?

Yes, but the real question is whether they will be successful. The initial challenge will likely be there is no “grave danger” or, even if there is, this particular ETS is not “necessary” for addressing the danger. Neither the statute, regulations, nor any court decisions have clearly defined these terms, however. In a 1984 decision invalidating an ETS regarding asbestos exposure, the court stated that “gravity of danger is a policy decision committed to OSHA, not to the courts.” Asbestos Info. Assn. v. OSHA, 727 F.2d 415, 427 (5th Cir. 1984). So, any prediction of success (or failure) of a legal challenge is mostly speculative at this time. When the ETS is issued, we will revisit this issue.

What about the constitution?

Beyond the statutory issues, some may argue the ETS is unconstitutional. That, of course, begs the next question of “how?” Any constitutional challenges must be based on a specific constitutional provision. The OSH Act is based on the commerce clause in the US Constitution, which gives the federal government authority to regulate interstate commerce. Further analysis may reveal other possible challenges, once the ETS is issued, but the statutory authority for issuing an ETS seems to be clear.  It is impossible to do a further analysis of legality until the ETS issued. Once it is issued impacted persons/entities with standing will have 60 days to challenge the ETS. Of note, since OSHA began, only ten ETSs have been issued. Of those, seven where challenged and only two went into effect. However, the most recent ETS issued is related to COVID and healthcare workers. It was issued earlier this year and survived all challenges.

Looking to learn more?  Tune in to Community Matters – Special Edition on Thursday, September 16 at 11 a.m.  Ashley Cuttino with Ogletree Deakins will be providing additional insights into this matter. Register here: