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Home > Employment Law Update September 2021

Employment Law Update September 2021

Federal government mandate regarding COVID-19 vaccination dominates the headlines in September 2021:

Biden Administration instructs OSHA to issue sweeping emergency COVID-19 mandate to private employers – will it survive legal challenges?

Earlier this month President Biden unveiled a 6 part plan to fight the spread of COVID-19, which includes calling on the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring workers at private companies with 100 or more employees to get vaccinated or submit weekly to COVID-19 testing.  The ETS is expected to impact more than 80 million private sector workers.

OSHA has the authority to issue emergency temporary standards only if it can show both that: 1) employees are exposed to grave danger from the hazard; and 2) the ETS is necessary to protect employees from that danger.  Notably, OSHA’s track record with ETS issuances is mixed.  According to the Congressional Research Service, in the nine times OSHA has issued an ETS prior to its COVID-19 health care ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.  An ETS can remain in place for 6 months, after which time it must be replaced by a permanent OSHA standard, which must undergo a formal rule making process, including a notice-and-comment period.

Here, much remains unknown about what the OSHA ETS will look like, including how the 100 employees will be counted, whether any guidance will be provided for how employers might collect and track weekly tests and their results, and whether any government assistance may be provided to help absorb the costs of the testing programs.  Regardless, there are hurdles that the ETS will need to clear, including its applicability to employers across very different work environments.  Notwithstanding the President’s sweeping directive, to pass scrutiny OSHA may find itself having to narrowly tailor the mandate to working atmospheres there require close interactions among employees where masking and social distancing is ineffective.

Employers and employees nationwide are eagerly awaiting action from OSHA.


Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.