OSHA Publishes Emergency Temporary Standard regarding Mandatory COVID-19 Vaccination and Testing

On November 5, 2021, OSHA issued a controversial Emergency Temporary Standard (ETS) regarding mandatory COVID-19 vaccinations or testing for many employers. The ETS generally applies to employers with 100 or more employees, except for employers who are covered by Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or the COVID-19 Healthcare ETS.

According to the ETS, covered employers must institute either (i) a mandatory vaccine policy or (ii) a policy that allows employees to choose to be fully vaccinated against COVID-19, or to provide proof of a negative COVID-19 test at least weekly and to comply with face covering requirements. Some employees may be eligible for certain exceptions from mandatory vaccination requirements, including individuals who are legally entitled to a reasonable accommodation based on disability or sincerely held religious beliefs, practices, or observances, and individuals for whom a COVID-19 vaccine is medically contraindicated or for whom medical necessity requires a delay in vaccination. The mandatory vaccination or testing requirements also generally do not apply to employees who work from home, who do not report to a workplace where others are present, or who work exclusively outdoors.

The ETS imposes various other requirements for covered employers. For example, employers must ensure that vaccinated employees provide proper forms of proof of vaccination and that certain information relating to vaccinations and test results is treated confidentially. Employers also must provide paid time off to employees for certain vaccination purposes, as dictated by the ETS. The ETS also specifies certain requirements regarding notifications of positive COVID-19 tests and protocols for removing and excluding employees who receive a positive COVID-19 test or diagnosis.

January 4, 2022 is the deadline for covered employers to ensure that their employees have received the necessary shots to be fully vaccinated or that their employees are compliant with testing requirements. However, employers must comply with other ETS requirements—such as masking requirements for unvaccinated workers and paid time off requirements—by December 5, 2021. OSHA has published additional resources for employers, including a fact sheet and FAQs, which clarify certain provisions of the ETS.

Contact your Kunzler Bean & Adamson attorneys for questions about complying with the ETS.