Such time off mandates are uncommon, though not unprecedented, but the president’s initiative may still face legal pushback.
The paid leave measure was one of several announced by the president on Thursday, including plans for emergency rules issued by the U.S. Labor Department’s Occupational Safety and Health Administration, all in an effort to boost U.S. vaccination rates and tamp down the resurgent pandemic.
About 25 percent of Americans aren’t yet inoculated. In announcing his new plans, the president asked the holdouts,"What more is there to wait for? What more do you need to see?” he said. “We’ve been patient, but our patience is wearing thin. And your refusal has cost all of us, so please, do the right thing.”
As the White House described it, the OSHA rule would require private employers with 100 or more employees to ensure workers are fully vaccinated against Covid-19 or test negative weekly, while also requiring employers to pay workers for the time off needed to get their shots and to bounce back.
If the paid time off requirement that OSHA writes is limited to vaccine-related time off, then its impact on employers should be relatively small, said Condon McGlothlen, a labor and employment lawyer at Seyfarth Shaw LLP in Chicago. That’s partly because more than 70% of the U.S. workforce already has received at least one dose of a Covid-19 vaccine.
“We’re talking about a minority of most employers’ workforces and trying to move the needle as to that minority,” he said. “Most of my clients have been offering vaccine incentives for months that are greater than the paid time off.”
It’s a different story, though, if the proposed new OSHA rule goes as far as the emergency temporary standard that OSHA released in June for the health-care industry, said Courtney Malveaux, an employment attorney with Jackson Lewis P.C. in Richmond, Va, and former Virginia labor commissioner. That health-care standard requires paid time off not just for employee vaccinations but also for employees who need to quarantine or isolate because of confirmed and suspected cases of Covid-19.
“Of course that is much more onerous, especially considering that the health care ETS requires an employer to hire a temporary worker in place of the displaced worker, and effectively pay for two workers for the price of one,” he said.
Although rare, there’s some history of OSHA using “medical removal” provisions in its workplace safety standards that can sometimes require employers to give paid time off or otherwise accommodate workers in letting them work from home or a job other than their usual position, said Debbie Berkowitz, a former OSHA senior policy adviser and chief of staff from 2009 to 2015 and also the former director of workplace safety and health at the National Employment Law Project.
OSHA’s lead standard, implemented in 1979, calls for medical removal of workers in jobs with lead exposure whose blood tests show dangerously elevated levels of lead.
OSHA’s Legal Authority
The safety agency’s coming emergency rule is likely to face broader industry opposition and more legal challenges than the health-care rule did, since many health-care providers were already following the safety protocols prescribed, Malveaux said. The White House estimated the upcoming rule would cover businesses that collectively employ about 80 million workers.
The agency has clear authority to regulate workplace safety and to implement emergency standards that seek to combat a grave danger facing workers, said Kate Andrias, a professor with labor law expertise at Columbia Law School. She previously worked as chief of staff to White House counsel during the Obama administration.
OSHA also would have a strong case against a challenge to the paid time off requirement, specifically, she added.
“The agency will likely get a lot of deference on this point, because it is best suited to assess the necessity of particular rules,” Andrias said.
Defending the use of the emergency rulemaking process could pose an obstacle for OSHA, whether defending the paid time off provision or a broader challenge to the vaccine and testing requirements, said Todd Logsdon, a Louisville, Ky., lawyer who co-chairs the workplace safety practice at Fisher & Phillips LLP.
“They have to show that there’s a grave danger so they don’t have to go through the normal rulemaking process,” he said. “It sounds like lots of groups are planning to challenge it, so we’ll see how successful that is.”
Berkowitz predicted OSHA would have no trouble making the legal case for an emergency Covid-19 rule—even one that went broader than vaccines, testing, and paid time off, if it chose.
“We know that a significant source of the spread of Covid-19 has been from workplace clusters,” she said. “Workers are getting it at work and then bringing it back home.”