Regular readers of this space may recall my earlier rhetorical query about COVID-19 vaccination mandates, posed with apologies to Shakespeare’s Hamlet, “To be jabbed, or not to be jabbed?” The U.S. Department of Labor’s Occupational Health and Safety Administration (“OSHA”) has an answer for the Bard’s perpetually perplexed Dane. Get jabbed.
THE SKINNY: Private employers with 100 or more employees (counting full and part-time workers but not independent contractors), must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
Under a November 5, 2021 Final Rule, OSHA issued an Emergency Temporary Standard (“ETS”) creating the vaccination mandate. In addition to covered private employers, the mandate also applies state and local-government employers in those states with an OSHA-approved State Plan. (New York State has one, so the ETS applies to municipal employers in the Empire State). Employers with fewer than 100 employees are not covered by the ETS. However, even if many of your staff are still remote, if you employ 100 of more people total, regardless of where they are performing work, you must comply with the ETS. For example, if you have 100 employees and half of them are working from home, the ETS applies to your business but not to your remote staff. (And yes, that makes about as much sense as garlic-flavored ice cream, but I hear that’s a thing also.)
Not all employees of covered employers must comply with the ETS. An employee doesn’t have to follow the ETS if: working somewhere without others present; working from home; or working exclusively outdoors.
The ETS requires covered employers to do the following (strap in):
So, when does the jabbing party begin? The ETS was effective immediately on November 5, 2021, when published in the Federal Register. (Inquisitive souls, or insomniacs desiring a holistic and natural treatment, may traipse through the 490-page tome HERE. However, covered employers have 30 days from November 5th to comply with most ETS requirements, and must follow the testing requirement within 60 days.
To be (jabbed) or not to be (jabbed), that is the question:
Whether 'tis wiser in a mask to suffer
The side-eyes and blinding of spectacles fogged,
Or to take jabs against variant COVID
And by inoculation, indoor-dining retrieve.
OSHA answers, verily yes! (At least if you have 100 or more employees.)
THE TAKEAWAY: Covered employers should immediately adopt compliant written policies, distribute those policies to employees, along with the other required information, and put in place testing and/or vaccination record-keeping systems. Brevity being the soul of wit, as Polonius taught the brooding Prince of Denmark, mind this brief, closing warning: check with your lawyer first (or you could slog through the nearly 500 pages of OSHA’s ETS, if you’re in the market for a nap).
This article is intended to be used for informational purposes only. Legal advice is neither implied by the author nor should be inferred by the reader. If you have specific legal questions, you should consult with your attorney.
Jeffrey Sculley, who may be reached at firstname.lastname@example.org, is an attorney and counselor at law focusing his practice on representing commercial and residential landlords; providing backroom human resource and employment support to businesses and not-for-profits; representing clients in appealing adverse trial-court and administrative decisions; logo and brand development and trademark protection; and representing clients in all types of administrative, regulatory and compliance matters, before governmental agencies and administrative hearing officers and law judges.
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