By: Nick Bonds, Esq.

At the beginning of this month, President Biden took a step he’d previously been reluctant to take – imposing new vaccine rules on federal workers and contractors, health care workers, and large employers.

Widely characterized as a “vaccine mandate,” the rules are actually not quite a mandate for private employers. Under President Biden’s “Path Out of the Pandemic,” the Department of Labor (DOL) is tasked with developing a rule requiring employers with 100 or more employees to ensure their employees are either 1) vaccinated, or 2) can produce a weekly negative COVID test result.

Even so, reactions to the requested rules were swift and polarizing. The day after the announcement, Press Secretary Jen Psaki was peppered with questions about how this new vaccine rule would be enforced, how quickly rules would be published, and what the timeframe for compliance would look like. All reasonable questions, and all with no immediate answers. Many in our industry, myself included, had hoped the rules might be published quickly. Our eagerness appeared vindicated when news dropped that the Occupational Safety and Health Administration (OSHA) – the DOL agency tasked with overseeing workplace safety in the U.S. – had sent a draft rule to the White House for final review.

Alas, that rule has yet to be released to the public. And perhaps for good reason: implementing the rule will require navigating a considerable number of hurdles, both legal (a number of Republican governors have already vowed to fight against the forthcoming vaccine rule, and the Biden administration undoubtedly expects myriad court battles) and practical (Which vaccines? Which Tests? Who pays? Must employers provide paid leave?). Unfortunately, many of our outstanding questions cannot begin to be answered until we can lay eyes on the new rule.

It is perhaps worth also noting, that OSHA is not known for moving quickly in its rulemakings, at least compared to other federal agencies. A Government Accountability Office study from 2012 found that OSHA takes an average of more than 7 years to develop and issue new safety and health standards through its standard processes. Thankfully, OSHA has another tool in their bag that allows them to move a bit faster, albeit temporarily: the emergency temporary standard (ETS). This expedited process allows OSHA to bypass aspects of its own cumbersome rulemaking process where the Secretary of Labor determines that workers are exposed to a “grave danger,” and an ETS is necessary to protect workers from that danger (see 29 USC § 655(c)). Once published, an ETS can become effective the same day and gives OSHA six months to promulgate a final, more permanent version of the standard.

Since the 1970s, OSHA’s ETS process has rarely been invoked. Most recently, it was invoked following President Biden’s second day in office, where he ordered the DOL to consider using an ETS to issue workplace masking mandates. In that case, we did not see an ETS until June – almost six months later. We certainly hope that it does not take OSHA to issue its ETS on vaccines, but it may. Considering the pushback from the GOP and portions of the business community, OSHA and the Biden Administration will likely want to do all they can to bolster the vaccine rules against legal challenge. Accordingly, we may have to wait until November or even later to finally dig into a new ETS, but hopefully we aren’t left hanging, waiting for vaccine rules to drop throughout the holiday season.