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OSHA Issues Emergency Temporary Standard Requiring Mandatory Vaccination or Testing of Private Sector Workers for COVID-19

November 5, 2021

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) revealed its Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing, which has been published in the Federal Register and is effective November 5, 2021. The ETS describes the "minimum" requirements regarding vaccinations, vaccination verification, face covering, and testing to prevent the spread of COVID-19 in the workplace. 

Scope and Application of the ETS

Employer Vaccination Policy Options

Covered employers may establish, implement, and enforce one of two kinds of policies pursuant to the ETS:

  1. A written mandatory vaccination policy under which all employees must be vaccinated (subject to certain exceptions); OR
  2. A written policy allowing employees who are not fully vaccinated to elect to either choose to be fully vaccinated or provide proof of weekly testing and wear a face covering at the workplace.

Definition of "mandatory vaccination policy": The definition of mandatory vaccination policy excludes employees: (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to a reasonable accommodation that does not cause the employer an undue hardship because they have a disability or sincerely held religious beliefs or practices that conflict with the vaccination requirement. (See our previous alert on this subject.)

Weekly testing: Covered employers must require each employee who is not fully vaccinated to get tested for COVID-19 (1) at least weekly if they are in the workplace at least once a week and (2) within 7 days prior to returning to the workplace if they are away from work for a week or longer. The ETS does not require covered employers to pay for the costs associated with testing, but payment may be required by other laws, regulations, collective bargaining agreements or contracts.

Covered employers must ensure that each employee who is not fully vaccinated properly wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except in limited circumstances. Employers must not prevent any employee, customers, or visitors from wearing face coverings.

For employers who have already adopted a mandatory vaccination policy, OSHA recommends a review of current policy to ensure that it complies with the ETS minimum requirements.

Determination of Employee Vaccination Status

Support for Employees

Notification & Reporting Obligations

Both employers and employees have notification and reporting obligations under the ETS:

Recordkeeping Requirements

The ETS also lays out several recordkeeping requirements, including:

Penalties

Effective Date of the ETS (and other federal vaccine mandates)

Also on November 4, 2021, the Centers for Medicare and Medicaid Services issued its own emergency regulations that require specific types of Medicare and Medicaid-certified providers and suppliers to establish a process or policy to fulfill the staff vaccination requirements in the regulations.

Significantly, on November 4, the Biden Administration announced that the deadline for workers required to receive their vaccination shot under the federal contractor rules and CMS rules will be pushed until January 4, 2022, in order to keep the dates consistent with the new OSHA ETS.

If you have any questions about these new developments or how they may impact your workplace, please contact the authors of this alert or your Miller Canfield attorney.

This information is based on the facts and guidance available at the time of publication and may change as the agency receives comments and/or updates its guidance.

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