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Department of Labor Issues Private Sector Vaccination Mandate Rule

In September, President Biden ordered the Occupational Safety and Health Administration (OSHA) to prepare an Emergency Temporary Standard (ETS) mandating that larger private sector employees get vaccinated against COVID-19. The Occupational Safety and Health Act authorizes an ETS in situations of “grave danger” for employees. 29 U.S.C. §655(c)(1).

The Department of Labor has issued its vaccination mandate rule for the private sector, which will require employers with 100 or more employees to establish procedures for compliance and will undoubtedly result in litigation over the lawfulness of the standard.

The mandate, immediately effective upon publication in the Federal Register, which is expected to be November 5, provides the following:

  • Generally. Employers with 100 or more employees are required to implement a policy mandating vaccination or, in lieu of vaccination, non-vaccinated employees must test negative for COVID-19 every seven days and wear a mask in the workplace.
  • 100-employee threshold. Part-time employees count towards the 100-employee threshold, while contractors and temporary workers do not. Employers with less than 100 permanent employees are not covered by the standard, even if they have temporary employees that bring them past the 100-employee threshold. An example from the published rule provides:
    • “If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees; however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers).”
  • What about employees who work from home? Because OSHA has determined that the provisions of the ETS are not necessary to protect employees from COVID-19 when they are working alone, or when they are working from home, even where the standard applies to a particular employer, its requirements do not apply to employees (1) who do not report to a workplace where other individuals such as coworkers or customers are present (2) while working from home; or (3) who work exclusively outdoors.
  • At what cost?
    • There is no requirement that an employer must cover the cost of testing, if any.
    • Employees will be responsible for procuring their own masks.
    • Employers will be required to provide up to four hours of paid time off to employees to get vaccinated and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
  • Recordkeeping. Employers must determine vaccination status and maintain a record of vaccination status, proof of vaccination and copies of employee COVID-19 test results and maintain a roster of the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. The records and roster are considered to be employee medical records and must be maintained as such.
  • Vaccination Policy. Covered employers must create vaccination policies addressing the ETS requirements, including:
    • Requirements for COVID-19 vaccination
    • Applicable exclusions from the written policy (i.e. medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs)
    • Information on determining an employee’s vaccination status and how this information will be collected
    • Paid time and sick leave for vaccination purposes
    • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace
    • Information about:
      • the ETS, the employer’s policies and procedures regarding vaccination, testing and results,
      • COVID-19 vaccine efficacy, safety and the benefits of being vaccinated,
      • protections against discrimination and retaliation under section 11(c) of the OSH Act, and
      • prohibitions against and criminal penalties for providing false statements or documentation.
    • Disciplinary actions for employees who do not abide by the policy.
  • Compliance Dates. Employers have 30 days from the effective date to comply with all provisions of the ETS (by December 5, 2021), except for the provision regarding testing for employees who are not fully vaccinated, which requires compliance within 60 days of the effective date (by January 4, 2022).
  • Exempted. The ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in workplaces already subject to the requirements of the Healthcare ETS.

Employers are encouraged to review and update their policies accordingly to ensure they are in compliance with this mandate. Please reach out to our Labor or Employment group with any questions or for further clarification.