OSHA on Vaccines and Testing: Employers with 100 or more Employees

The Labor Department’s Occupational Safety and Health Administration issued its emergency temporary standard (ETS) on November 4, 2021, addressing COVID-19 vaccinations and testing for larger employers to counter the spread of the coronavirus. The ETS covers any private employer with 100 or more employees. Part-time, full-time, and remote employees are all included in the count. If related companies share management control of occupational safety and health measures, then their employees should be combined for the count.

Employers subject to the ETS should develop, adopt, and enforce policies compliant with the ETS. The policy should either (1) mandate full vaccination for all employees, or (2) provide a choice to either (A) be vaccinated, or (B) undergo weekly testing and wear mask in the workplace. Full vaccination means two doses of Moderna or Pfizer-BioNTech or one dose of Johnson & Johnson.

The ETS requires strict compliance with recordkeeping and logistics. Notable elements of an ETS-compliant policy include maintenance of vaccine records for all employees, weekly testing for unvaccinated employees, and mandatory notice requirements for Covid-positive employees.

Starting December 5, the mask mandate for employees who are not fully vaccinated will be in effect and employers will be required to pay for time off for vaccination (up to 4 hours) and to recover from the side effects of vaccination. This provision incentivizes employers to begin the vaccination effort before December 5. In contrast, the rules do not require employers to pay for time off for testing or the costs of testing.    

The rules apply across the board to all employees except employees who work remotely or outdoors. For healthcare employers, they apply to employees who are not covered by the healthcare ETS. For covered employees, exemption from mandatory vaccination, where implemented by the employer, is allowed for medical and religious reasons only.

The ETS-compliant policy must be in effect by December 4, 2021, and employers will be required to comply with testing requirements by January 4, 2022.