OSHA Issues Vaccine Mandate

By Colin A. Walker, Fairfield and Woods, P.C.

On November 5, 2021, the Department of Occupational Health and Safety (OSHA) has published a new Emergency Temporary Standards (ETS) for COVID vaccinations. The ETS covers employers with 100 or more employees and requires employees to be fully vaccinated or to test negative weekly and to wear masks. Covered employers must adopt a written plan explaining the requirements and procedures to ensure compliance. 

In calculating the 100 employee threshold, part-time workers are included and employees are to be counted regardless of where they work. However, independent contractors are not included. Employees of staffing agencies do not count for the host employer, but they do count for the staffing agency. Related entities may be considered a single employer depending on the circumstances. 

The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services subject to the requirements of the Healthcare ETS (29 CFR 1910.502).

While workers who work from home are included in determining if the employer is covered, they are not subject to the vaccination requirement. In other words, an employer must count workers who work from home in determining if it meets the 100 employee threshold, but it does not have to require them to be vaccinated. The reason for this is that OSHA has determined that such workers do not pose as much of a threat regarding COVID transmission and are best capable of addressing the risks of COVID themselves. Workers who do not report to a workplace where other individuals are present and who work exclusively outdoors also need not be vaccinated.

Covered employers must determine the vaccination status of all employees, maintain records of each employee’s vaccination status, and maintain a roster of vaccination status. The ETS discusses what constitutes acceptable proof of vaccination status. 

Covered employers must provide employees a reasonable time, up to four hours of paid time, to receive each vaccination dose and reasonable time and paid leave to recover from side effects. This may not be offset by other paid leave provided by the employer such as vacation or sick leave. The employer needs not pay any costs or paid leave associated with testing. 

An employee must promptly notify the employer of a positive COVID test and the employer must then immediately remove the employee from the workplace. The ETS explains when the employee may return to work. 

The ETS is effective immediately and employers are required to be in compliance within 30 days, except for the testing requirements for unvaccinated employees, for which employers must be in compliance within 60 days. The ETS also serves as a proposal for a final standard and OSHA is requesting comments on how it should be adopted as a final standard.

The ETS pre-empts state and local laws. Therefore, state and local laws which prohibit employers from requiring COVID vaccines will not be enforceable.  

More information can be found here.

Questions? Contact COSHRM's Legislative Director, Colin Walker.