On Sept. 9, 2021, President Biden announced some sweeping changes in the way the federal government is combating the COVID-19 pandemic as part of the administration's Path out of the Pandemic action plan. In addition to encouraging Americans to get vaccinated, the President announced the following:

  • The Department of Labor's Occupational Safety and Health Administration (OSHA) is developing an emergency rule to require employers with 100 or more employees to ensure their workforces are fully vaccinated or show a negative test at least once a week.
  • OSHA will also require employers with 100 or more employees to give unvaccinated workers paid time off to get vaccinated.
  • He had signed an Executive Order requiring federal contractors to ensure that their employees be vaccinated.

Employers are, understandably, curious as to the details of these rules. As of now, however, the details are few, because the rules have yet to be issued. OSHA may act swiftly on these announcements, but in the federal bureaucracy, "swiftly" is a relative term. The relevant administrative agencies must work through the statutory authority that they have been given by Congress and craft a rule that is within that authority and can, at least arguably, withstand scrutiny by a court.

Mandating Large Employers To Require Vaccination

Usually, federal agencies must go through a relatively lengthy process before issuing binding regulations. However, the federal Occupational Safety and Health Act (OSH Act) authorizes the Secretary of Labor to issue occupational safety and health regulations upon a finding that a particular standard is necessary to reduce a significant risk of material health impairment. The OSH Act provides that the Secretary shall issue an emergency temporary standard if he or she finds that the standard is necessary to address a grave danger to workers. In issuing emergency standards, the Secretary is required to provide a comprehensive statement of the dangers that justify the emergency standard so that, among other reasons, a court can determine whether the situation fits the statutory standard.