OSHA Unveils Emergency Temporary Standard on Mandatory COVID-19 Vaccine or Testing Requirement for Private Employers

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently unveiled an emergency temporary standard that applies to private sector employers with 100 or more employees, except where the workplace is covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in a setting where the employee provides healthcare services or healthcare support services that fall under the requirements of 29 C.F.R. §1910.502. The rule also does not apply to employees of covered employers who work from home, exclusively outdoors, or who do not report to a workplace where other individuals such as coworkers or customers are present. In determining whether a business meets the 100 employee threshold, part-time employees will be included in the calculation, while independent contractors will not be included.

Under the rule, employers must establish, implement, and enforce a written mandatory vaccination policy that requires each employee to be fully vaccinated against COVID-19, unless the employer implements a policy allowing employees to choose between: (1) being fully vaccinated; or (2) wearing a face covering while at work sites and being tested for COVID-19 at least once every 7 days. If employees that elect the weekly testing option cannot produce a negative COVID-19 test result, or if they test positive, the employer must remove the employee from the workplace. For purposes of complying with the rule, the COVID-19 test must be: (i) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g. a viral test); (ii) administered in accordance with the authorized instructions; and (iii) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. The rule does not require employers to pay for costs associated with the COVID-19 tests for employees that choose to undergo weekly testing. However, employers may still be responsible for these costs under other laws or collective bargaining agreements. Employers covered by OSHA’s new rule will be required to provide employees with paid-time off to get vaccinated and to recover from any negative side effects. Employees are required to comply with the vaccine regimen by January 4, 2022 and employers are required to comply with the rules regarding paid time off and masking requirements for unvaccinated employees by December 5, 2021.

The Centers for Medicare & Medicaid Services also issued its own emergency regulation requiring health care workers at hospitals, nursing homes, and other facilities participating in Medicare and Medicaid, to be fully vaccinated by the same January 4, 2022 deadline. However, this rule does not include the weekly testing option.

For assistance with compliance with OSHA’s Emergency Temporary Standard, please contact Jessica DeBono Anderson at Jessica.Anderson@csklegal.com or any other member of CSK’s Employment Law Group.