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Mandatory Vaccine Requirements for Private Employers – Understanding the Imminent Emergency Temporary Standard

As employees return to the workplace amidst the ongoing COVID-19 pandemic, and with the emergence of the Delta variant, employers have been faced with the issue of whether, and how, to implement vaccination protocols.

On September 9, 2021, President Biden announced that all private employers with more than 100 employees, on a company-wide basis, will have the following choice: (1) ensure that employees in the workplace are vaccinated, or (2) have unvaccinated employees in the workplace present negative test results on a weekly basis. This requirement will apply to close to 80 million workers in private sector businesses, or about two-thirds of the country’s workforce.

Private employers have some time in deciding whether to mandate proof of vaccination or weekly negative tests from employees. President Biden has directed the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop an Emergency Temporary Standard (“ETS”) implementing this requirement. The Department of Labor’s briefing on September 10, 2021 indicates the ETS will be issued in the upcoming weeks.

The ETS will also require employers to provide paid time off to employees so they may receive their COVID vaccinations, and to recuperate from any symptoms that occur following the vaccination. The Department of Labor confirmed that the ETS would not affect remote-workers, provided they do not appear in the workplace. An Administration official has noted that employers failing to comply with the ETS may face penalties of up to $14,000 per violation.

Following the announcement, the White House issued an 11-page memo outlining Biden’s six-pronged “Path out of the Pandemic” action plan (found here). This plan delineates a comprehensive national strategy to combat COVID-19, including vaccine mandates for federal contractors and healthcare workers.

Private employers in Colorado should work with qualified legal counsel to ensure their compliance with the forthcoming ETS. While there may be legal challenges to the ETS before it is officially issued, employers should start establishing policies for determining employees’ vaccination status and standard procedures for tracking weekly test results. Wells Anderson & Race LLC’s team of experienced employment lawyers can assist your business in advising how to maintain compliance under the ETS.

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