OSHA Issues Private Employer COVID-19 Vaccine Mandate Effective December 5th

Today, OSHA released its Emergency Temporary Standard (ETS) regarding Covid-19 vaccination requirements for private sector employers with 100 or more employees.  The 490-page ETS raises many questions, but there will be little time to work through those as the ETS is effective on December 5, 2021.  This deadline will also put additional pressure on short-staffed employers going into the busy holiday season.

What employers need to know about the ETS:

• Employers with more than 100 full or part time employees will have two choices:
  • Adopt and implement a mandatory vaccination policy for all employees, permitting exemptions only for religious or medical reasons, or
  • Require all employees who chose not to vaccinate to: 1) begin wearing a face covering over their nose and mouth as of December 5^th and 2) provide a negative Covid-19 test result on a weekly basis starting January 4^th. Employers will not be required to pay for the testing or provide face coverings.
• The ETS does not include any allowance/accommodation for an employee’s previous infection with Covid-19 except to the extent that vaccination is not medically advisable for a certain period of time after being diagnosed with Covid-19.
• Employers are required to grant employees up to four hours paid time to receive a vaccination and grant employees paid sick leave to recover from any vaccination side effects.
• Employees who exclusively work outdoors or at home are exempt from the mandate. However, these employees will be counted in considering the 100+ employee threshold.
• Being fully vaccinated does not require boosters.
• Employers must prepare a formal written plan regarding how they will comply with the ETS. The plan must be provided to each employee in a language and at a literacy level the employee will understand.

The ETS will surely be challenged in court as an overreach of OSHA’s authority.  Additionally, although the ETS itself states that conflicting state and local laws are preempted, there will be legal challenges due to conflicts between the ETS requirements and actions by States, including Texas, prohibiting vaccination and masking mandates.