OSHA's Mandatory Vaccine Rule

The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard to minimize the risk of Covid-19 transmission in the workplace. Covered employers must develop, implement, and enforce a mandatory Covid-19 vaccination policy by December 5, 2021. In lieu of a mandatory vaccination policy, covered employers may promulgate a policy that permits employees who are not fully vaccinated to undergo weekly Covid-19 testing and wear a face covering in the workplace. Employers must implement weekly testing requirements for employees who are not fully vaccinated by January 4, 2022. Any policy must allow medical or religious accommodations.
 
Who is a Covered Employer? The emergency temporary standard covers private employers with 100 or more employees in the firm or corporation with four broad exceptions (discussed next). In states with OSHA-approved analogous State Plans, private, state- and local-government employers with 100 or more employees will be covered by state occupational safety and health requirements. 
 
Who is Not a Covered Employer? There are four broad categories of employers not covered by the emergency temporary standard: 
 
  1. employers covered under the Safer Federal Workforce Task Force Covid-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; 
  2. settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare emergency temporary standard; 
  3. employers with fewer than 100 employees in total; and 
  4. public employers in states without State OSHA Plans.
 
Does the Emergency Temporary Standard Apply to All Employees? No. Even if a company is covered by the emergency temporary standard, the requirements do not apply to: (1) employees who do not report to a workplace where other individuals are present; (2) employees working from home; and (3) employees working exclusively outdoors.
 
How Does a Covered Employer Comply? An employer must develop, implement, and enforce either a mandatory Covid-19 vaccination policy or a policy that allows employees to choose between getting vaccinated or undergoing weekly Covid-19 testing and wearing a face covering at the workplace. The face covering requirement applies to all non-vaccinated employees when indoors or occupying a vehicle with another person for work purposes. The employer must determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records and a roster of each employee’s vaccination status. 
 
Employees must be provided a reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Each employee who is not fully vaccinated must be tested for Covid-19 at least weekly (if in the workplace at least once a week) or within seven days prior to returning to the workplace (if away from the workplace for a week or longer). The emergency temporary standard gives employers the option of passing the cost of Covid-19 testing on to employees. However, employers may still be required to cover the cost of testing pursuant to other federal, state, and local laws, and any applicable collective bargaining agreements. This is likely to trigger bargaining obligations in union-represented workplaces.
 
What if an Employee Contracts Covid-19? Under the emergency standard, an employer must require an employee who tests positive or is diagnosed with Covid-19 to promptly provide notice to the employer. The employer must then immediately remove any such employee from the workplace, regardless of their vaccination status, and keep the employee out of the workplace until return-to-work criteria are met. 
 
What Notice Must be Provided? By December 5, 2021, a covered employer must provide each employee with information, in an understandable manner, that explains: (1) the requirements of the emergency temporary standard and the workplace policies and procedures that were developed to comply with it; (2) vaccine efficacy, safety, and the benefits of being vaccinated; (3) the protections against retaliation and discrimination; and (4) that there are laws that provide for criminal penalties for knowingly supplying false statements or documentation. 
 
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We will circulate a more comprehensive memorandum next week with additional information on the application of and compliance with the new requirements. Separately, litigation has already been filed over the emergency temporary standard, and other groups have prospectively announced that they will challenge the emergency standard. We will monitor such litigation closely. 
 
Please contact your Clifton Budd & DeMaria, LLP attorney with any questions. 
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Carla B. Gunther
Counsel
Carla Gunther represents management in all aspects of labor and employment law. She provides strategic advice and counsel to employers...
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Daniel W. Morris
Partner
Daniel W. Morris serves as Partner at Clifton Budd & DeMaria, LLP. He focuses his practice on employment litigation in federal...
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David P. Ofenloch
Partner
David P. Ofenloch joined Clifton Budd & DeMaria as a Partner in 2018. David's practice primarily concentrates on employee benefits...
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