Understanding the new OSHA Vaccine Mandate – Details & Requirements
The Biden Administration has employed several measures to increase the number of Americans vaccinated against Covid-19. Two controversial measures, listed on the official White House website, have been the September 2021 issuance of Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, and the “New Vaccination Requirement for Employers With 100 or More Employees.”
The latter mandate orders “employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis.” This order was issued to “address the grave danger of COVID-19 in the workplace,” according to the Department of Labor (DOL). Thus, as with other health and safety-related policies, DOL tagged the Occupational Safety and Health Administration (OSHA) to regulate and, to an extent, enforce this nationwide requirement.
Covered employers who opt to require worker vaccination have until January 4, 2022, to ensure compliance. With the deadline looming and numerous workers and politicians expressing concerns, beleaguered employers have questions about what to expect from this new OSHA vaccine mandate.
Background Leading to OSHA’s Covid-19 Vaccine Mandate
In July 2021, the Biden Administration issued a fact sheet announcing several new actions designed to boost Covid-19 vaccination rates and thereby enhance workplace safety.
Actions listed under the Strengthening Safety Protocols for Federal Employees and Federal Contractors section asked that federal government employees and contractors reveal their vaccination status and take applicable masking, social distancing, and screening precautions based on if they were vaccinated or not. Private organizations were encouraged to follow suit.
Hard requirements for federal employees
By September, the government began rolling out the hard rules. The federal worker vaccine requirement was put forth, with ~4 million employees required to be fully vaccinated by November 22, 2021.
As noted by the Department of Defense in its memo to workers, personnel are counted as “fully vaccinated 2 weeks after completing the second dose of a two-dose COVID-19 vaccine or 2 weeks after receiving a single dose of a one-dose COVID-19 vaccine” (i.e., two doses of the Pfizer or Moderna vaccine, or one dose of Johnson & Johnson vaccine).
Contractors and military personnel requirements
Federal contractors, originally given a deadline of December 8, received an extension until January 4, 2022, to get vaccinated. Meanwhile, military branches set their own internal deadlines earlier than the standard applied to DOD civilians.
The Army’s deadline is December 15; the Navy and Marine Corps’ is November 28. The Coast Guard (which falls under the Department of Homeland Security) has a November 22 suspense. The Air Force (and its subordinate new Space Force) had a deadline of November 2, and now unexempted members who refused the vaccine are being reviewed for potential disciplinary actions or discharge under the Uniform Code of Military Justice.
What OSHA Requires from Private Employers
As published on the Federal Register, OSHA issued its 154-page COVID–19 Vaccination and Testing; Emergency Temporary Standard, or ETS, created to “protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.”
Of note, DOL states on its webinar that the ETS’s secondary purpose is to “preempt state and local laws that interfere with the employer’s authority to require vaccination, facing covering, or testing.” The ETS’ effective date was November 5, 2021, and it will impact ~84 million workers around the nation.
Why an ETS?
OSHA’s COVID-19 Vaccination and Testing ETS summary sheet outlines the organization’s underlying rationale, citing a need to establish an ETS because “Workers are becoming seriously ill and dying as a result of occupational exposures to COVID-19, when a simple measure, vaccination, can largely prevent those deaths and illnesses.”
The summary sheet goes on to explain how the ETS protects workers “through the most effective and efficient control available – vaccination – and further protects workers who remain unvaccinated through required regular testing, use of face coverings, and removal of all infected employees from the workplace.”
What does the ETS require specifically?
Again, the ETS is 154 pages long, and therefore difficult to summarize. However, important wording within the publication states: “Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing, and wear a face covering at work in lieu of vaccination.”
The passage apparently indicates two choices for large employers — to either require full vaccination by January 4, 2022, or testing plus masking while at work. The ETS notes it “does not require all covered employers to implement a mandatory vaccination policy,” but “OSHA expects that employers that choose that compliance option will enjoy advantages that employers that opt out of the vaccination mandate option will not.”
Thus it appears that currently, employers do have options. OSHA’s ETS uses strongly worded language to explain the benefits of taking the vaccination route, citing that “employers with a mandatory vaccination policy will enjoy a dramatically reduced risk that their employees will become severely ill or die of a COVID-19 infection.”
Another listed benefit is that employers will see less worker downtime from infections since employees who are Covid-positive must be “remove[d] from the workplace.”
Lastly, employers who select not to require vaccinations are responsible for the “administrative burden necessary to ensure that unvaccinated workers are regularly tested for COVID-19 and wear face coverings when they work near others.”
Who is affected?
OSHA’s COVID-19 Vaccination and Testing ETS applies to “covered employers.” As described in All About OSHA, “The OSH Act covers most private sector employers and their workers, in addition to some public sector employers and workers in the 50 states and certain territories and jurisdictions under federal authority.”
The ETS further clarifies that its rule applies only to “large employers (100 or more employees).” The summary sheet lists workplaces not covered by the ETS as well as employees of covered employers who aren’t subject to the ETS.
Vaccination paid time off
OSHA does not want workers to have to choose between getting paid or getting vaccinated. Therefore, employers must provide workers with “reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from vaccination side effects.”
Testing requirements
Employers who don’t require worker vaccination must, per the ETS, ensure employees who aren’t fully vaccinated get tested “at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).”
To remain work-ready, unvaccinated or partially vaccinated employees have to show proof of negative Covid test results (the ETS spells out which tests are acceptable). However, employers don’t have to pay for costs associated with such weekly testing…at least not under the ETS guidelines. They might, however, have obligations based on other laws or agreements.
Resources for Employers
To supplement the ETS, OSHA put out additional explanatory information for employers, including:
● An official news release
● A 30-minute webinar on YouTube
● Fact Sheets (downloadable PDF files)
○ About the ETS
○ ETS Summary
○ How You Can Participate
○ Spanish guidance — Norma Temporal de Vacunación y Pruebas de OSHA: Cómo puede participar
● Frequently Asked Questions
● Social media resources for employers
● A comprehensive list of references
Additionally, OSHA published helpful implementation guidance, including employer templates that can be customized:
● Employer Mandatory Vaccination Policy Template (downloadable Word Doc file)
● Employer Mandatory Vaccination or Testing and Face Covering Sample (downloadable Word Doc file)
