President Biden COVID-19 Plan

January 13, 2022 Update:

On January 13, 2022, the United States Supreme Court issued a decision reinstituting a stay of OSHA’s Emergency Temporary Standard (ETS). Click here to read the opinion of the Court.
It appears that the majority of the Court ruled that without a more explicit delegation of authority from Congress, OSHA can only regulate hazards that are fairly unique to the workplace, which could have broader implications for OSHA’s regulatory reach than just this COVID-19 ETS.
“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
NECA wanted to advise that the ETS seems to have been put to rest by the Supreme Court, and there are no regulatory obligations to meet pursuant to the ETS. NECA will provide more in-depth analysis of the Court’s decision soon, not only about what it means for the ETS, but the sea change it may signal for OSHA’s regulatory authority generally. Please click here to read NECA’s full legal alert developed by Conn Maciel Carey LLP.

December 18, 2021 Update:

The United States Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Standard. OSHA can implement this workplace standard. To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

On January 7, 2022, the Supreme Court heard arguments on whether OSHA overstepped its authority when it issued the ETS requiring employers with at least 100 employees to mandate vaccinations or masks and weekly testing for workers. Information regarding the outcome should be released in the coming weeks.

Summary of Six-Pronged Approach

President Biden is implementing a six-pronged, comprehensive national strategy that employs the same science-based approach that was used to successfully combat previous variants of COVID-19 earlier this year. This plan will ensure that we are using every available tool to combat COVID-19 and save even more lives in the months ahead, while also keeping schools open and safe, and protecting our economy from lockdown and damages.

Information regarding Biden’s six-pronged approach includes: 1) vaccinating the unvaccinated; 2) further protecting the vaccinated; 3) keeping schools safely open; 4) increasing testing & requiring masking; 5) protecting our economic recovery; 6) improving care for those with COVID-19. You can read a summary of the action plan by clicking here.

Below is some information on Vaccinating the Unvaccinated, as it directly applies to the Electrical Construction Industry.

Vaccinating the Unvaccinated

  1. Requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly. The Department of Labor’s OSHA is developed a rule that requires employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. This Emergency Temporary Standard (ETS) was published in the Federal Register on November 5, 2021.
  2. Requiring employers to provide paid time off to get vaccinated. To continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA developed a rule that requires employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.
  3. Requiring vaccinations for all Federal workers and for millions of contractors that do business with the federal government. The President signed an Executive Order requiring all federal executive branch workers be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. As part of this effort, the Department of Defense, the Department of Veterans Affairs, the Indian Health Service and the National Institute of Health will complete implementation fo their previously announced vaccination requirements that cover 2.5 million people.