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November 9, 2021 Advice

Here’s what employers should know about OSHA’s vaccine mandate

On Thursday, the U.S. Department of Labor’s Occupational Safety & Health Administration published an emergency temporary standard on COVID-19 vaccination and testing. ETS imposes binding requirements on many private employers nationwide concerning COVID-19 vaccination, testing, and reporting in the workplace.

Photo | Courtesy of Bowditch & Dewey
Jacob A. Tosti, labor and employment attorney at Bowditch & Dewey

Employers should first determine whether this new rule applies to their workplace. The ETS applies to all private employers with 100 or more employees, except for federal contractors covered under the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety Guidance, and settings where any employee provides healthcare services or healthcare support services subject to the requirements of OSHA’s Healthcare ETS (a separate rule published by OSHA in June 2021). However, even if an employer is covered by the ETS, its requirements do not apply to employees who do not report to a workplace where other individuals are present, employees while they are working from home, and employees who work exclusively outdoors.

Next, covered employers should determine what they need to do in order to comply. Broadly, the new rule’s requirements can be broken down into three main categories: requirements concerning COVID-19 vaccination and testing, the employer’s response to a confirmed case of COVID-19, and notice to employees.

As an initial matter, employers must maintain a record of the vaccination status of each employee, and obtain proof of vaccination from vaccinated employees. In addition, employers must provide employees with reasonable time – including up to four hours of paid time – to get vaccinated, and reasonable paid sick leave to recover from any vaccination-related side effects. 

Further, employers must choose to implement either a mandatory COVID-19 vaccination policy, or a policy allowing employees the choice to either get vaccinated or undergo COVID-19 testing (generally on a weekly basis) and wear a face covering at the workplace. Employers can adopt a partial mandatory vaccination policy for particular subsets of their workforce, and require any remaining employees to choose between vaccination or COVID-19 testing and mask-wearing. Any mandatory vaccine policy must permit certain medical and religious-related exemptions for employees.

Covered employers must require employees to give notice if they receive a positive COVID-19 test or are diagnosed with COVID-19, and those employees must be excluded until return-to-work criteria are met. Finally, covered employers must give employees notice concerning the new rule’s requirements, any workplace policies or procedures implementing the ETS, and a copy of the U.S. Centers for Disease Control document “Key Things to Know About COVID-19 Vaccines.”

According to the ETS, employers must have compliant policies and practices in place by Dec. 5, and must either begin testing unvaccinated employees or ensure all employees are vaccinated by Jan. 4. However, the ETS has already been challenged in lawsuits across the country and recently, the U.S. Fifth Circuit Court of Appeals granted an emergency stay of the ETS, which may still be in effect in the coming months. Accordingly, employers should watch for any legal developments in the short term.

Jacob A. Tosti is a labor and employment attorney at Worcester law firm Bowditch & Dewey.

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