On September 9, 2021, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop a rule to increase the number of workers who have received a COVID-19 vaccination. Consistent with that direction, OSHA developed an Emergency Temporary Standard which would apply to employers with more than 100 employees. On November 4, 2021, OSHA issued its final rule, requiring that all employees of employers with 100 or more employees either be vaccinated or be tested on a weekly basis and to have a negative test before coming to work.
Here are the three critical components of OSHA’s new rule:
- First, all covered employers must ensure that their employees have received the shots to be fully vaccinated by January 4, 2021. After January 4, 2021, all employees who have not received the necessary shots must produce a verified negative test on at least a weekly basis. Any employee who tests positive must be removed from the workplace. Please note that the OSHA rule does not require that the employer pay for the test.
- Second, all covered employers are required to provide paid leave, up to four hours per dose, for any unvaccinated employee to get vaccinated and, if needed, reasonable paid sick leave to recover from side effects. If an employee has available sick leave, employers may require that employees use that time to cover those absences.
- Finally, all unvaccinated employees are required to wear a face mask while in the workplace starting December 5, 2021. As a practical matter, this means that all covered employers will need to determine the vaccination status of their employees prior to December 5, 2021 or require mandatory masking.
For covered employers who have not yet implemented a vaccinate-or-test mandate, now is the time to prepare to implement a policy so that you will be prepared to comply with the rule. While the rule permits a testing option, covered employers can choose whether they want to have a mandatory vaccination policy, with testing as the accommodation for employees with religious and medical exemptions. For employees who are subject to weekly testing, the regulations dictate what kind of tests will be accepted for employees subject to weekly testing. Your policy will also need to address who will pay for the weekly test, as well as such practical matters as who in the organization will be responsible for ensuring that employees are complying with the weekly testing policies. Finally, you will need to designate an employee to handle requests for religious or medical accommodations and decide what kind of screening the company will do to ensure that requests for religious accommodations are legitimate.
The OSHA rulemaking also requires that employers develop a written policy addressing these issues. Please note that, beyond questions about vaccination status, other medical inquiries by employers and businesses are still governed by the Americans with Disabilities Act. If you have questions about how to comply with the rulemaking or for assisting in preparing a written policy, please contact one of our attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.