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Federal Government Announces Vaccination Rules for Employers, Including OSHA’s Vaccine or Testing Requirements for Large Employers

November 9, 2021


Last week, the United States Occupational Safety and Health Administration (“OSHA”) issued its long-anticipated Emergency Temporary Standard (“ETS”) that requires employers with 100 or more employees to ensure that employees either be fully vaccinated against COVID-19 by January 4, 2022 or be tested weekly.  Employers are required to comply with the remaining requirements of the ETS by December 5, 2021.

Covered Employers.  The ETS applies to private-sector businesses with at least 100 employees at any time while the ETS is in effect.  All full-time and part-time employees in the U.S. (including remote employees) count for purposes of this threshold, but independent contractors do not count.  Public employers are not covered by the ETS.  To spare businesses the inconvenience of having to track multiple vaccination requirements for the same employees, OSHA’s rule will not apply to workplaces already covered by the Biden Administration’s Executive Order 14042 (requiring federal contractors and sub-contractors to mandate vaccination for their employees) or to workplaces covered by the Centers for Medicare & Medicaid Services (“CMS”)  rule for health care workers.

Covered Employees.  The ETS will apply to all employees who report to workplaces where other employees or customers may be present.  In general, the ETS does not apply to remote employees, employees who work in a location where no other people are present, and employees who work exclusively outdoors.

ETS Vaccination and Testing Requirements.  Covered employers must comply with the ETS by either (1) requiring all covered employees to be vaccinated by January 4, 2022, unless the employee qualifies for a medical or religious exemption or (2) providing employees with the choice of either showing proof of vaccination or submitting to at least weekly COVID-19 testing and wearing face coverings.  Regarding testing, employers are not required to pay for the cost associated with COVID-19 testing in the absence of another law or agreement that requires payment.  Unvaccinated employees who do not produce proof of a negative COVID-19 test or any employee who tests positive for COVID-19 must be removed from the workplace.

OSHA has published two sample policies – one for employers implementing a mandatory vaccination policy (subject to accommodations required by law) and one for employees specifically providing that employees with an option to be vaccinated or subject to weekly testing and masking.

Proof of Vaccination – Acceptable Documentation.  Employers must require each vaccinated employee to provide acceptable proof of vaccination status, and employers must treat information concerning an employee’s vaccination status as confidential medical records, which should be stored separately from the employee’s personnel file.  Employers should maintain all documentation of vaccination status while the ETS is in effect.

Paid time off for vaccination.  OSHA’s rule will also require covered employers to provide paid time off for employees to get vaccinated and recover from any side effects they experience.  Employers must begin providing this paid time off and requiring unvaccinated workers to wear masks by December 5.

Overlap with Other Rules. On Thursday, the Biden Administration also announced that it was pushing back the deadline for federal contractors to implement employee vaccine mandates to align with the OSHA ETS and the CMS rule.  The Biden Administration had previously set December 8, 2021 as the effective date for federal contractors. They will now have until January 4, the date the two new rules go into effect, in order to make it easier for employers to implement the requirements on the same timeline as others in their industries.

CMS also announced an Interim Final Rule requiring health care workers at hospitals, nursing homes, and other facilities that participate in Medicare and Medicaid to be fully vaccinated by the January 4 deadline, unless they have been granted a religious or medical exemption.  The CMS rule does not require testing for unvaccinated employees granted an exemption.  Covered healthcare workers cannot opt out of vaccination by electing to get a weekly test.

Legal Challenges.  On Saturday, the United States Court of Appeals for the Fifth Circuit entered a temporary stay of the OSHA ETS.  The court will hear additional arguments this week and will then rule on whether to extend the temporary stay.  Nevertheless, covered employers should still ensure compliance by the December 5 deadline.  Employers not enforcing OSHA’s rule could face a fine of up to $13,653 for each serious violation.  In addition, employers could be subject to a fine of $136,532 for each willful violation.

Montgomery McCracken’s Labor and Employment attorneys regularly advise employers on complying with Department of Labor, Department of Health and Human Services, and other federal regulations. If you have any questions regarding the new OSHA, CMS, or federal contractor rules, we are available to assist.