News of forthcoming OSHA vaccine mandate swirling in employment law circles

At this stage, the certain thing we can tell you is that change is coming. So “stay tuned.” Until we review the an actual signed Presidential executive order or any final rule issued by OSHA, we can’t say with certainty what will be the case. But here are some of the things that the news reports are saying could happen:

1. Employers with more than 100 employees may be mandated to require vaccinations or weekly testing. Notice this is the same approach that was taken when President Biden issued a directive about employees of the Federal government and Federal contractors on July 29: Get a vaccination or get tested.

This new requirement will probably take the form of a rule issued by OSHA—and may come quickly. That's because the new rule is expected to be an emergency rule which will probably bypass the usual and time-consuming notice-and-comment requirements of the Administrative Procedure Act.

The rule may also require employers to provide time off for getting vaccinated or getting tested.

2. The changes may not provide for the testing option for employees of the Federal government or Federal contractors. There may be a blanket requirement for vaccination of employees in those two classes.

3. The executive order may require all healthcare workers to be vaccinated—again without the testing option. Employees in nursing homes are already required to be vaccinated, but that requirement may be extended to employees of hospitals, home-health agencies, dialysis centers, and other healthcare providers.

4. News reports also suggest that airline passengers and visitors to Federal facilities may be required to wear masks or face fines.

5. Because they are federally funded, Head Start programs and potentially other federally funded programs may have a vaccinate-or-test requirement as well.

None of these news reports address two key concerns I have about vaccination mandates: religious and disability exemptions.

So all of my commentary comes with a sincere warning that there will probably be other aspects of all this vaccine hullabaloo that we won't know or understand until the official executive order or actual OSHA rule is announced.

As soon as we know more, we'll let you know.

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