OSHA Issues Nationwide COVID-19 Vaccination Mandate

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):

• Develop, implement, and enforce a mandatory COVID-19 vaccination policy. (Instead of such a policy, employers can adopt a policy giving employees the option to either get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at work.)

• 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.

• Give employees reasonable time off, including up to four hours of paid time off, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.  (Employees can be required to use their accrued PTO or sick leave for time off needed to recover.)

• Ensure that each employee who is not fully vaccinated be tested at least weekly for COVID-19 (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).

• Require employees to promptly notify their employer when receiving a positive COVID-19 test or are diagnosed with COVID-19.

• Immediately remove any employee from the workplace, regardless of vaccination status, who receiving a positive COVID-19 test or diagnosis by a licensed healthcare provider and keep that employee out of the workplace until specified return-to-work criteria are met.

• 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.

• Provide each employee with information (in a language and at a literacy level the employee understands) about: the ETS requirements and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (employers can comply with this requirement by giving employees the Center Disease Control document entitled, “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

• Report work-related COVID-19 fatalities to OSHA within 8 hours of discovery, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning of same.

• Make certain records available for examination and copying to an employee (and to anyone having the employee’s written authorized consent) or an employee representative.  This may include providing OSHA with a copy of your adopted, written vaccination policy (and, of course, subject an employer without such a policy to an OSHA penalty.)

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 jsculley@cmrlaw.com, 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.