OSHA Issues Vaccine Mandate for Private Employers

By AYZ Education Law Group

November 9, 2021

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) for large companies regarding the COVID-19 vaccine. Beginning January 4, 2022, large employers with over 100 workers must mandate COVID-19 vaccinations or weekly testing and masking for those who decline the vaccine. The ETS will cover two-thirds of all private-sector workers in the U.S.

Under the ETS, employers are required to maintain records of each employee’s vaccination status as well as support vaccination by providing paid time off to receive doses of up to four hours. The ETS does not require employers to pay for costs associated with weekly testing. OSHA provided answers for each aspect of the ETS in an FAQ sheet.

The ETS will preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering or testing. OSHA noted that as further developments in the pandemic occur and more of the workforce is vaccinated, the agency will update the ETS as necessary.

Over the weekend, at least 27 states filed legal challenges following the release of the ETS. The 5th U.S. Circuit Court of Appeals placed a pause on the rule, asking the Biden administration to explain why the stay on the ETS should not be permanent. The cases will be consolidated and heard in one of the federal circuit courts on November 16. Despite the stay on the rule, the Biden administration encourages the public to be vaccinated in anticipation of the January 4 due date.

OSHA noted that it will consider expanding the mandate to smaller businesses with 100 or fewer employees based on the comments gathered during a 30-day period. Comments can be made through OSHA’s docket in the Federal Register.

As mandates move forward, other exemptions may apply. The Equal Employment Opportunity Commission recently released a technical assistance in navigating religious exemptions and accommodations that will be helpful for employers as they work through requests leading up to January 4.

Should you have any questions about the ETS, or any other issue related to employment, please do not hesitate to contact William J. Zee or any of the attorneys in the Appel, Yost & Zee Labor and Employment Law Group.