Published on November 4, 2021
Today the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS) and details of the vaccination mandate previously announced to minimize the risk of COVID-19 transmission. The ETS requires employers with 100 or more employees to comply with the federal mandatory vaccine rules by January 4, 2022. Employees will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by that date to comply with the mandate.
The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements to protect employees from COVID-19 in the workplace. Employers will be required to:
- develop, implement, and enforce a mandatory COVID-19 vaccination policy; alternatively, employers may adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work
- determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status
- support vaccination by providing employees reasonable time to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects
- ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer), and that all unvaccinated employees wear a face mask while in the workplace
- require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; and keep removed employees out of the workplace until they meet criteria for returning to work
- ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances
- provide employees with information about the requirements of the ETS and workplace policies and procedures established to implement the ETS, protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation
- report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization
- make available for examination employee vaccine documentation and COVID-19 test results
The ETS will preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing. The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety, and the mandate does not apply to remote workers or those working exclusively outdoors (however, those workers are counted toward the 100-employee threshold).
The information above is a short summary of the information detailed in the ETS. For more specifics, view the OSHA ETS summary, OSHA ETS website, and the White House fact sheet. For questions, please contact any member of Ryan Swanson’s Employment Rights, Benefits & Labor group.