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OSHA releases final rule regarding workplace vaccination mandates

published in McAfee & Taft EmployerLINC Alert | November 4, 2021

This morning the federal Occupational Safety and Health Administration (OSHA) released its interim final rule regarding the Biden administration’s vaccination mandate for employers with 100 or more employees. The rule will be effective upon publication in the Federal Register, which is scheduled for Friday, November 5, 2021. Covered employers must be in compliance with the rule by Tuesday, January 4, 2022.

The released document, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” is nearly 500 pages in length. McAfee & Taft’s Labor & Employment lawyers will continue to analyze and monitor the new rule and its impact on covered employers and will provide additional further guidance in the coming days. In the meantime, though, below is a summary of how this rule will impact employers.

The rule establishes minimum requirements for employers. It does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. It does not apply in circumstances governed by the previously released OSHA Healthcare ETS.

The rule does not apply to employees of covered employers (1) who do not report to a workplace (defined as a fixed or mobile physical location where the employer’s work or operations are performed) where other coworkers or customers are present, (2) while working from home, or (3) who work exclusively outdoors.

Employers must “establish, implement, and enforce a written mandatory vaccination policy.” Alternatively, employers must establish, implement and enforce “a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19…and wear a face covering” as required by the rule. The rule expressly preserves accommodations for disabilities and sincerely held religious beliefs.

Covered employers must determine the vaccination status of each employee, i.e., whether each employee is fully vaccinated. Acceptable proof of vaccination status includes a record of immunization from a health care provider, pharmacy or immunization information system, a copy of a COVID-19 Vaccination Record Card, a copy of medical records documenting vaccination, or even a sworn attestation of an employee unable to produce proof of vaccination. Employers must maintain records and rosters of vaccination status, and “must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated.”

Employers must provide a “reasonable amount of time to each employee for each of their primary vaccination dose(s)” and “up to 4 hours paid time” for this purpose. Employers must also provide “reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose.”

With respect to employees of covered employers who are not fully vaccinated, any employee who reports at least once every 7 days to a workplace shared by coworkers or customers must be tested for COVID-19 at least once every 7 days and must provide documentation of the most recent test result to the employer “no later than the 7th day following the date on which the employee last provided a test result.” If no such documentation is timely provided, “the employer must keep that employee removed from the workplace until the employee provides a test result.” Employers must maintain records of test results, and treat them as confidential medical records. Notably, the rule itself “does not require the employer to pay for any cost associated with testing,” although it may do so.

In addition, and subject to certain exceptions, employees who are not fully vaccinated must generally wear face coverings indoors and when occupying a vehicle with another person for work-related reasons. Covered employers are not responsible “for any costs associated with face coverings” under the rule.

The rule contains additional minimum standards regarding protocols for employees who test positive for COVID-19, and for the reporting of COVID-19 fatalities and hospitalizations to OSHA.

The rule expressly notes that it does not supplement collective bargaining or other employee agreements that may require heightened standards or protocols.