(11/8/2021 Update): On November 6, a federal appeals court in Louisiana blocked the below COVID-19 vaccine mandate in response to a suit filed by several states. We expect more to develop in the coming days.
On November 4, Occupational Safety and Health Administration (OSHA) released details on the COVID vaccine mandate for companies with 100+ employees. Note: health care providers, government contractors, and Medicare/Medicaid providers have separate mandates not covered in this blog.
Which employers are currently subject?
Employers with 100 or more employees must follow the newly released regulations. All employees should be counted to determine whether or not an employer is subject; this includes part-time, full-time, and remote workers. Companies affiliated through common ownership or controlled groups should consult with an attorney to determine if all groups must be counted together.
Although state challenges are expected, the Labor Department’s top legal official, Seema Nanda, told reporters that OSHA rules preempt conflicting state laws or orders. In states that have their own OSHA-approved agencies for workplace issues, those agencies must enact a rule at least as effective as OSHA’s.
OSHA indicated a new rule may be released in the future to also cover smaller employers by asking for public comment.
What is required?
Companies must require workers to be fully vaccinated or conduct weekly COVID testing and wear a mask while in the workplace. Employers must retain documentation of employees’ vaccination statuses. To be fully vaccinated, an employee must receive two doses of Moderna or Pfizer-BioNTech, or one dose of Johnson & Johnson; booster shots are not currently required under the OSHA rule.
December 5 is the deadline for enforcing the mask mandate. Employees must be fully vaccinated or begin testing January 4.
Lastly, employers must provide paid time off for their workers to get vaccinated (up to four hours) and paid sick leave to recover from side effects of the vaccine. This leave requirement begins December 5.
What exceptions are allowed?
Employees working from home and employees who work outdoors will not be required to be vaccinated or test weekly; only those in the workplace are covered under the order’s rules.
Employers are required to give exemptions to comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (sincerely held religious beliefs).
What considerations are there for testing in lieu of vaccination?
Unless workplace employees qualify for an exemption, employers could choose to mandate vaccines without a testing option.
If the testing option is given to unvaccinated employees, employers are not required to pay for tests, provide tests, or provide paid time off for testing. The OSHA rule allows for both PCR and antigen tests to be used for weekly testing, provided they are approved for emergency use by the FDA. However, over-the-counter home tests are generally not considered sufficient unless they are proctored (the tests cannot be both self-administered and self-read).
Employers should note that so-called “surveillance” testing or testing for employment purposes is not required to be covered by health insurance. The federal mandate to cover COVID-19 testing only requires coverage for tests ordered by a healthcare provider.
What are the penalties?
Employers who fail to comply could face penalties of up to $13,653 per serious violation.