OSHA Issues Its Emergency Temporary Standard Mandating COVID-19 Vaccination Or Testing For Employees Of Employers With At Least 100 Employees

November 5, 2021

The Occupational Safety and Health Administration (“OSHA”) has released its emergency temporary standard (“ETS”), which will be published in The Federal Register on November 5, 2021. We previously discussed President Biden’s “Path out Of The Pandemic” COVID-19 action plan, which called on OSHA to issue the ETS to require employers with 100 or more employees to mandate that their employees be vaccinated or receive weekly COVID-19 testing.

The highly anticipated finalized ETS provides the following:

  • The ETS applies to business with at least 100 employees companywide. 

  • Employers can mandate COVID-19 vaccinations or require employees to either get vaccinated or undergo weekly COVID-19 testing.

  • Employers are required to establish written policies to implement the requirement that employees be vaccinated or submit to weekly COVID-19 testing.

  • All unvaccinated workers are required to start wearing masks by December 5, 2021 and produce a negative COVID-19 test on a weekly basis beginning January 4, 2022.

  • All workers whose employer mandates vaccination, or who have opted for vaccination if their employer has allowed weekly testing in lieu of vaccination, must be fully vaccinated by January 4, 2022.

  • Employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.

  • Remote and outdoor workers are not required to comply with the vaccination or testing requirement.

  • Employers are required to pay employees for the time it takes to get vaccinated and recover from any resulting side effects that prevent them from working.

  • Employers are not required to pay for or provide COVID-19 testing unless they are separately required to do so under state or local laws, or pursuant to a labor union contract.

  • Employers are required to comply with reporting and recordkeeping requirements, including informing OSHA of any COVID-19 deaths within 8 hours of learning of the deaths and any work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

  • OSHA’s ETS preempts any inconsistent state or local laws, including laws that ban or limit and employer’s authority to require vaccination, masks, or testing.

For employers, please contact the attorneys at Freeburg & Granieri, APC to discuss how we can help your organization properly navigate the laws and requirements surrounding workplace vaccine and testing mandates and the reasonable accommodation process for employees who request an exemption from the mandate.  The attorneys at Freeburg & Granieri, APC can also assist employers draft mandatory COVID-19 vaccination and testing policies.

For employees, if this new order applies to your workplace, your employer should be following the rules to keep you and your coworkers safe.If your employer is not following the new OSHA guidelines, contact the attorneys at Freeburg & Granieri, APC to discuss how we can help you protect yourself.

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