Employment and Labor

OSHA Issues New Rule Requiring Employers with More than 100 Employees to Require Proof of Vaccination or Testing

OSHA Issues New Rule Requiring Employers with More than 100 Employees to Require Proof of Vaccination or Testing

On November 16, 2021 OSHA announced that it is suspending implementation of the ETS until litigation is resolved.  Specifically, OSHA stated “The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  Nevertheless, employers should closely monitor this ETS because OSHA could revise the ETS and/or move forward with implementation in the future.  

In September, President Biden issued his COVID-19 Action Plan in which he announced, among other things, that the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) was developing a rule to require all employers with more than 100 employees to ensure their workforce is fully vaccinated or require unvaccinated employees to provide negative test results on a weekly basis.  On November 4, 2021, OSHA issued its rule, which is an Emergency Temporary Standard (“ETS”).  An ETS can be enforced immediately if OSHA determines that there is a “grave danger” to worker safety. 

While legal challenges are being asserted, employers should be aware of the new rule and begin planning for its implementation.  Specifically, employers should be aware of the following:

  • By December 5, 2022, employers must require unvaccinated employees to wear face coverings.
  • By January 4, 2022, employers must ensure their workers are fully vaccinated or that they are providing negative tests on a weekly basis.  If an employee tests positive, an employer must remove the employee from the workplace.
  • The rule notes that “[a] signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination.”
  • Employers are not required to pay for employees’ testing. 
  • Employers must provide paid time off for employees to get vaccinated and paid time off if employees feel ill after receiving the vaccine.
  • The rule applies to part-time employees.
  • Employees who work exclusively outdoors or who work exclusively from home are excluded from the rule.  However, employees who work outdoors or from home on a part-time basis are included in the rule.
  • The rule does not relieve employers from its obligations under Title VII and the ADA. So, employers should still consider offering accommodations to employees who cannot take the vaccine because of a disability or sincerely-held religious belief.  One such accommodation might be negative testing.
  • Employers are permitted to enact policies that are more restrictive than the new OSHA rule.  So, employers can require employees to receive the vaccine (without providing an exemption to employees who provide weekly negative tests), so long as employers provide required accommodations to employees with sincerely-held religious beliefs and disabilities.
  • OSHA will fine businesses $14,000 for each incident of non-compliance.
  • The rule will remain in effect for six months, at which time OSHA must replace with it a permanent rule.  

Our team will continue to monitor the legal challenges to this new rule and will update as new information is available. Check back for updates.