OSHA Imposes Mandatory COVID-19 Vaccination and Testing Policy on Employers with 100+ Employees

The Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) to reduce the spread of COVID-19 in the workplace. It generally requires private employers with 100 or more employees (covered employers) to develop, implement and enforce a mandatory COVID-19 vaccination policy. Alternatively, covered employers can adopt a policy requiring employees to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS is effective as of November 5, 2021, but covered employers have thirty days to comply with most of its provisions.

In addition to implementing a COVID-19 vaccination / testing policy, covered employers must:

• Determine each employee’s vaccination status, obtain proof of vaccination and maintain records (and a roster) of each employee’s vaccination status.
• Provide reasonable time (up to 4 hours) for employees to get vaccinated and reasonable time and paid sick leave to recover from any side effects.
• Ensure that each unvaccinated employee 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).
• Require employees to provide prompt notice of a positive COVID-19 test or diagnosis.
• Immediately remove any employee, regardless of vaccination status, who received a positive COVID-19 test or diagnosis and keep them out of the workplace until return-to-work criteria are met.
• Require unvaccinated employees to wear a face covering when indoors or in a vehicle with another person for work purposes.
• Provide employees with information about: the ETS and its requirements; vaccine efficacy and safety; protections against retaliation and discrimination; and criminal penalties for knowingly supplying false statements or documentation.

The ETS does not require employers to pay for testing, though some may be required to do so to comply with other laws, regulations or collective bargaining agreements. Employers are also not required to pay for face coverings. OSHA posted additional information and resources, including FAQs, policy templates and fact sheets, at COVID-19 Vaccination and Testing ETS.

This is obviously a momentous policy change with far-reaching implications. In the coming days, covered employers nationwide will be digging through the 150-page ETS (triple column, single-spaced) to learn more about its specific requirements because the devil, as always, is in the details. State governors and attorneys general are no doubt doing the same. Some have already announced their intention to oppose the ETS in court. This is just the beginning.

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