OSHA’s New COVID-19 Vaccination and Testing Emergency Temporary Standard – November 30, 2021

by Dana M. Silva

By now, most people have heard of President Biden’s vaccination policy aimed at employers with 100 or more employees, implemented through the Occupational Safety and Health Administration’s recently released Emergency Temporary Standard (ETS) titled “COVID-19 Vaccination and Testing; Emergency Temporary Standard.”  President Biden has already issued a vaccination policy aimed at federal employees and federal contractors, and the new rule creates an additional requirement for employers not affected by this previous rule.  Even though President Biden’s new rule was recently stayed by the U.S. Court of Appeals for the Fifth Circuit and faces numerous challenges in other jurisdictions, it is nevertheless a good idea for employers to take the time to familiarize themselves with the new rule and review their current policies.  The new OSHA rule is of particular interest to California employers as Cal/OSHA may soon adopt the federal policy or adopt a more stringent rule.

Requirements:  The new OSHA rule requires employers with 100 or more employees ensure their workers are fully vaccinated or conduct weekly testing.  Unsurprisingly, and in line with previous rules, the OSHA rule also requires that employers provide paid time for employees to get vaccinated, including recovery time.  However, the OSHA rule does not require employers to pay for the testing, though employers should always be wary of other laws or collective bargaining agreements requiring them to cover this cost.  The new Rule further requires that all unvaccinated workers wear a face mask in the workplace.  The White House estimates that the new Rule will cover 84 million employees.

For those employers who have not yet implemented written policies on vaccines, testing, and face coverings, the ETS requires employers to adopt such written policies.  The new Rule also imposes record keeping requirements and notice and reporting requirements when there is a COVID-19 case, COVID-19 fatality or hospitalization.  As always, employers are advised to exercise care in learning of employees’ vaccination status and abide by all state and local requirements for keeping employee’s confidential personnel records.

For California employers, the federal OSHA rule does not directly apply.  However, Cal/OSHA has 30 days to adopt the federal ETS or draft alternative standards that are at least as effective as the OSHA rule.  For any employer with multi-jurisdiction employees, it is imperative that employers understand whether they are governed by the federal OSHA rule or a state OSHA agency that could soon adopt a similar standard.

Timing:  If the stay is lifted, and the ETS enacted, for all portions of the ETS other than testing and vaccination compliance date such as the mask requirement, enforcement begins on December 6, 2021.  The testing and vaccination deadline is January 4, 2022.

Exemptions:  For employers who have not yet drafted vaccination policies, employers want to ensure that any policy provides accommodations for all medical and religious requests.  This includes not only the requirement for vaccination, but for testing as well.

Perhaps the most controversial aspect of the new Rule will be that it specifically preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.  The new OSHA rule will likely face more legal challenges as it collides with state and local rules prohibiting such mandates.  Regardless of the new Rule’s fate, employers are advised to act now in considering implementing any new policies.  That way, if the stay is lifted, or if their state agency enacts a similar mandate, employers are not left scrambling to comply.

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This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.

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