OSHA issues rule on COVID-19 vaccine mandate  

The Occupational Safety and Health Administration (OSHA) published its highly anticipated coronavirus Emergency Temporary Standard (ETS) on Nov. 4. 

Under the standard, employers that have a collective number of employees in all facilities across the country that add up to 100 or more “must develop, implement and enforce” a mandatory COVID-19 vaccination policy or adopt a policy that requires employees to choose to be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

In addition to the vaccination or testing policies, employers must also ensure that workers receive paid time to get vaccinated or tested. They also should be compensated for their time if they have side effects from the vaccine. 

The agency said it estimates the new ETS will help to protect more than 84 million workers from COVID-19.

According to an OSHA fact sheet issued on Nov. 4, the deadline for workers to receive their shots will be Jan. 4, 2022. 

The fact sheet also notes that the new rules “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.” A state can avoid preemption ONLY if it submits and receives federal approval to operate a State OSH Plan agency. Those agencies are required to adopt an ETS that is “at least as effective” as the Federal standard. So, for “state-plan” states, the state OSH agencies will need to adopt amendments that reflect these new vaccination and testing requirements within 30 days. Thus, state plan states may have more time for implementation.

Importantly, while the testing requirement for unvaccinated workers will begin after Jan. 4, employers must be in compliance with all other requirements on Dec. 5. If a business fails to comply with the rule, they could face fines up to $14,000 per violation, according to initial reports on the new rule.

In summary, the “COVID-19 Vaccination and Testing ETS” requires employers with 100 or more employees (including part-time, seasonal or temporary employees employed directly by the company, not a staffing agency) to do the following:  

Get their employees vaccinated by Jan. 4 and require unvaccinated employees to produce a negative test on at least a weekly basis: All covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by Jan. 4, 2022.  After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS states that a COVID-19 test cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

The ETS outlines the wide variety of tests that comply with the standard. Given that vaccines are safe, free, and the most effective way for workers to be protected from COVID-19 transmission at work, the ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements. 

Pay employees for the time it takes to get vaccinated: All covered employers are required to provide paid time for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working. 

Ensure all unvaccinated employees are masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace. 

Keep records and comply by Dec. 5: Employers are subject to requirements for reporting and recordkeeping. Specifically, employers must maintain a record of each test result provided by each employee or obtained during tests conducted by the employer. However, while employers are required by OSHA to keep employees’ medical records for 30 years, vaccination information required by the ETS is exempt from this rule. 

While the testing requirement for unvaccinated workers will begin after Jan. 4, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on Dec. 5.