COVID-19 Vaccination Mandate – What Employers Need to Know

UPDATE: Many States, businesses, and other organizations challenged OSHA’s vaccine mandate in United States Courts of Appeals. In one such case, a three-judge panel of the Fifth Circuit Court of Appeals stayed implementation of the mandate pending adequate judicial review of a motion for permanent injunction and ordered that OSHA “take no steps to implement or enforce the mandate until further court order.” Thereafter, the various cases were consolidated before the Sixth Circuit Court of Appeals, which lifted the stay and allowed the mandate to take effect. Thereafter, on January 13, 2022, the United States Supreme Court once again stayed enforcement of the mandate. The Supreme Court concluded that the applicants for the stay are likely to prevail on their argument that the mandate exceeds OSHA’s statutory authority and is otherwise unlawful.

Following direction from President Biden, OSHA issued an emergency temporary standard (“ETS”) on November 4, 2021, which requires private employers with 100 or more employees to do one of the following:

  1. Implement and enforce a mandatory vaccination policy; or
  2. Implement and enforce a weekly testing and mask policy, whereby employees who are not fully vaccinated must undergo weekly COVID-19 testing and wear a face covering at the workplace.

            Below are some answers to common questions concerning the ETS. Additional information and answers may be found here and here.

What is the deadline to comply?       

            The ETS became effective November 5, 2021. Except for testing unvaccinated employees, the deadline to implement and enforce the policies required by the ETS is within 30 days (or by December 5, 2021). The deadline to begin requiring testing for unvaccinated employees is within 60 days (or by January 4, 2022).

How long will the ETS be in effect?

            OSHA anticipates that the ETS will be in effect for six months. However, OSHA may end or extend the ETS as it believes appropriate.

Does “100 or more employees” include part-time employees, offsite employees, remote employees, temporary and seasonal employees, or independent contractors?

            With few exceptions, the ETS generally applies to employers that have a total of at least 100 employees firm- or corporate-wide, at any time the ETS is in effect. Thus, non-employees such as independent contractors do not count toward the threshold, but the following employees do count towards the threshold:

  • full- and part-time employees
  • employees working offsite, such as employees working outdoors or working from company vehicles
  • remote employees
  • temporary and seasonal employees, provided they are employed at any time the ETS is in effect

            It is also important to note that OSHA may be considering whether to extend the ETS to employers with fewer than 100 workers. In the ETS, OSHA states that it “needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.”

What if the number of employees changes, either increasing to at least 100 or dropping to below 100?

            If an employer has 100 or more employees as of November 5, 2021, the ETS applies to that employer for the entire time the ETS is in effect, regardless of whether the number of employees subsequently drops below 100. If the employer has fewer than 100 employees as of November 5, 2021, the ETS does not apply unless that employer subsequently hits the 100-employee threshold. Once an employer hits the 100-employee threshold, the employer must come into compliance with the ETS, and the ETS will apply for the entire time the ETS is in effect, even if the number of employees drops below 100.

If several small businesses share a workspace that includes at least 100 employees, are they required to comply with the ETS?

            Employers are only required to count the employees connected to their own business. Other workers who might be in a shared space do not count toward the threshold.

Can an employer implement a partial mandatory vaccine policy, where certain employees are under the vaccine mandate while other employees have the choice of vaccine or testing and masks?

            Yes. OSHA recognizes there may be employers who implement partial mandatory vaccination policies, i.e., a policy that applies to only a portion of their workforce. In this situation, the employer may choose to require vaccination of only some subset of its employees (for example, those working near customers), and to treat vaccination as optional for others (for example, those working at headquarters or performing intermittent remote work). This hybrid approach would comply with the ETS so long as the employer complies with the required policies for the respective groups.

What exemptions apply?

            If an employer adopts a mandatory vaccination policy, employees may request an exemption from the vaccine mandate if (1) the vaccine is medically contraindicated for them, (2) medical necessity requires a delay in vaccination, or (3) they are legally entitled to a reasonable accommodation due to a disability or sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement.

            Any employee who is not fully vaccinated, regardless of the reason, must wear a mask and submit to weekly COVID tests, unless also entitled to a reasonable accommodation due to a disability or sincerely held religious belief, practice, or observance.

            Before taking any personnel actions, employers should consult applicable law (including labor management contracts, if applicable). Additional information can be found in OSHA’s guidance regarding Workers’ Rights under the COVID-19 Vaccination and Testing ETS and from the EEOC’s guidance regarding What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

How can employers determine the vaccination status of employees?

            The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

            Acceptable proof of vaccination status is:

  • The record of immunization from a healthcare provider or pharmacy;
  • A copy of the COVID-19 Vaccination Record Card;
  • A copy of medical records documenting the vaccination;
  • A copy of immunization records from a public health, state, or tribal immunization information system; or
  • A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site administering the vaccine.

            If an employee is unable to produce one of these acceptable forms of proof of vaccination, the employee can provide a signed and dated statement attesting to or acknowledging the following: (1) their vaccination status (including attesting to the type of vaccine administered, the dates of administration, and the name of the administering professional or clinic), (2) that they have lost and are otherwise unable to produce one of the other forms of acceptable proof; and (3) that providing false information may result criminal penalties.

How should a weekly testing and mask policy work?

            Weekly testing. The ETS requires employers to ensure that each employee who is not fully vaccinated is tested at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). Acceptable tests are those approved by the FDA, which do not include self-administered and self-read tests unless observed by the employer or an authorized telehealth proctor. The ETS does not require employers to pay for any costs associated with testing (although other laws, regulations, collective bargaining agreements, or other agreements may require it). However, nothing prohibits employers from voluntarily assuming the costs associated with testing.

            The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test; (3) keep removed employees out of the workplace until they meet criteria for returning to work. To meet the criteria to return to work, employees must receive a negative result on a COVID-19 nucleic acid amplification test (NAAT), meet the return-to-work criteria as established in the CDC’s isolation guidance, or receive a recommendation to return to work from a licensed healthcare provider.

            Employers are not required to provide paid leave during the removal periods. Employers should be aware of various state and local wage and hour obligations as well as local COVID-19 supplemental paid sick leave laws that remain in effect.

            Masks. The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Face coverings must (1) completely cover the nose and mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven, such that light will not pass through (with the exception of otherwise permissible clear plastic panels); (3) is secured to the head with ties, ear loops, or elastic bands; (4) fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits or other openings.

Do the ETS’ mandates apply to remote employees?

            The ETS’ mandates do not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present. Thus, the ETS’ mandates do not apply to employees working exclusively from home or in the outdoors.

Do employees who recently tested positive still have to comply with the ETS’ mandates?

            Yes. OSHA has determined that it is not feasible for employers to permit exemptions based on a prior infection. The ETS does not offer any exemption to its requirements based on “natural immunity” or the presence of antibodies from a previous infection.

            However, when an employee has received a positive test or been diagnosed with COVID, the employer should not require that employee to undergo testing for 90 days following the date of their positive test or diagnosis. Although, during this time, the employee must continue to wear a face covering.

Do employers need to provide paid time off for vaccinations and any side effects?

            Regardless of whether the employer implements a mandatory vaccine policy or the alternative weekly testing and mask policy, the ETS requires employers to provide employees up to four hours of paid time to receive each dose of the vaccine (i.e., each dose necessary to achieve full vaccination status) at the employee’s regular rate of pay. The maximum of four hours of paid time for the vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. If an employee requires more than four hours of time off for a vaccine dose, the additional time, as long as it is reasonable, would be unpaid but protected leave.

            The ETS also requires “reasonable time and paid sick leave” to recover from side effects of each dose. Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement. If an employee already has accrued paid sick leave, the employer may require the employee to use that paid sick leave when recovering from side effects. Employers cannot require employees to use advanced sick leave (or require an employee to accrue negative paid sick leave or borrow against future paid sick leave) to recover from side effects.

            The requirements to provide paid time for any vaccine dose or to recover from side effects do not apply retroactively to vaccine doses received before November 5, 2021.

What records must employers maintain?

            Employers must maintain (1) proof of vaccination for each employee who is fully or partially vaccinated, (2) a roster of each employee’s vaccination status, and (3) a record of each test result provided by each employee. If an employer ascertained vaccination status before November 5, 2021, they are exempt from re-determining the vaccination status of individuals whose fully vaccinated status has been previously documented.

            These records are considered confidential employee medical records and should be maintained separately from employees’ personnel files. The ETS states that these records must be available to that employee (and to anyone having written authorized consent of that employee) for examination and copying by the end of the next business day after a request. These records must be maintained and preserved while this section remains in effect (i.e., they are not subject to OSHA’s standard 30-year retention requirement).

What information should be provided to employees?

            The ETS requires employers to provide employees the following information in a language and at a literacy level that the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination (for example, see these fact sheets available in English and Spanish); and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation (for example, see these fact sheets available in English and Spanish).

Where can I get policy templates?

            A mandatory vaccination policy template can be found here. A vaccination or testing and face covering policy template can be found here. In addition, an experienced employment attorney may help in preparing, implementing, or enforcing such policies.