OSHA publishes employer vaccine mandate rules

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November 04, 2021

The US Department of Labor’s Occupational Safety and Health Administration today published its long-anticipated Emergency Temporary Standard, or ETS, requiring private employers with 100 or more employees to ensure their employees are vaccinated against Covid-19 or tested for it. The requirement will take effect Friday when it’s published in the Federal Register.

Under this federal rule, employers with 100 or more employees must develop, implement and enforce a mandatory Covid-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular Covid-19 testing and wear a face covering at work.

The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA state plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.

The ETS also requires employers to provide paid time off to workers to get vaccinated and to allow for paid leave to recover from any side effects.

“Unfortunately, the standard does not consider the unique operating characteristics of staffing agencies by including alternative size tests for determining their small business status under the ETS, as lobbied for by the ASA,” said Fiona Coombe, director of legal and regulatory research at SIA. “Those staffing firms with 100 employees on Nov. 5, the effective date, will have to apply the ETS for the duration of the standard, which is expected to be six months initially. One good piece of news is that employers will not be expected to bear the cost of testing or buying face coverings.”

Employer responsibilities under the ETS also include:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for Covid-19 or receive a Covid-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for Covid-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Independent contractors do not count toward the total number of employees, according to an OSHA FAQ site that Coombe suggests those affected review. However, temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect.

“In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS,” OSHA stated. “The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency.”

It continues: “On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).”

The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication. The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.


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