On November 4, 2021, the U.S. Department of Labor issued an emergency temporary standard (“ETS”) directing all private employers with 100 or more employees corporate-wide to establish, implement, and enforce a mandatory COVID-19 vaccination policy. Under the ETS, covered employers can also allow employees to elect to undergo weekly COVID-19 testing and wear a face-covering at the workplace, in lieu of vaccination. Either approach must be put into a written policy and each employee must be informed of how the employer is implementing the ETS. Employers that choose not to offer a testing option to all employees must still provide an exemption from the vaccine requirement and a testing option for employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) who are legally entitled to a reasonable accommodation because they have a disability or sincerely-held religious belief, practice, or observance that conflicts with a vaccine requirement.
Although the ETS is effective immediately upon publication, employers will have until December 5, 2021 to comply with most provisions of the ETS. Thus, covered employers must issue a written policy requiring vaccinations and determine and maintain a record of the vaccination status of all employees by that date, including obtaining documented proof of vaccination, by December 5. Employers must also provide specific information to employees about vaccine efficacy, safety, and the benefits of being vaccinated; OSHA retaliation prohibitions; and criminal penalties for providing false statements and documentation. Additionally, by December 5, employers are required to provide paid time off for employees to get vaccinated or to recover from any negative side effects of inoculation.
Any employee who does not provide by December 5 acceptable documentation of vaccination, as set forth in the ETS, must be treated by the employer as not fully vaccinated and must thereafter wear face coverings that comply with OSHA standards at all times within the workplace. In addition, if an employer is allowing testing in lieu of vaccination, beginning January 4, 2022, employers must require weekly proof of a negative COVID-19 test for all employees who (1) are not fully vaccinated and (2) report to a workplace where other coworkers or customers are present. Employers should note that employees who have not received their second shot of a two-dose regimen or their single shot of a single-dose regimen by December 21, 2021 will not meet the ETS’s definition of fully vaccinated on January 4, 2022 and must undergo testing until they are. Beginning January 4, if an employee who is not fully unvaccinated does not timely produce a negative test, or if they test positive, the employee must be removed from the workplace. Employers are not required to pay for the testing of individuals that do not wish to be vaccinated unless required to do so by other law, regulation, contract, or an applicable collective bargaining agreement.
Employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outside are not covered by the ETS. The ETS generally does apply to unionized workplaces.
To ease the burden on federal contractors, the DOL has also said that it will extend the deadline for federal contractors to comply with the similar but stricter previously-issued vaccine mandate, which was the subject of a prior Legal Alert. Besides extending the deadline for compliance with the vaccine mandate, these new rules do not affect the federal contractors vaccine mandate.
It is anticipated that there will be pushback from state and local governments, and Congressional Republicans have already expressed their opposition. The ETS specifically states that it preempts any contradictory state or local laws.
