OSHA’s Rule Mandating Vaccination Against COVID-19 Goes Into Effect Friday, November 5, 2021

Kollman & Saucier
Kollman & Saucier

The Occupational Safety and Health Administration (OSHA) has mandated, for the first time ever, a vaccination in the workplace.  For any employer with 100 or more employees company-wide, all employees must be vaccinated against COVID-19 or subject to weekly testing.  For any state that has its own work safety agency, they will have thirty (30) days to implement the federal OSHA standard or their own mandate that is at least as protective as OSHA’s.

The first looming deadline is December 5, the date by which employers must have their compliance program in place, offer paid time off for vaccinations, and require unvaccinated workers to wear masks.  The next important deadline is January 4, which is the date workers must be fully vaccinated or start being tested.   This emergency temporary standard (ETS) will be in effect for six months at which time OSHA must replace it with a permanent standard.

Under the ETS, employers must determine the vaccination status of each worker; obtain acceptable proof of vaccination status; maintain records and a roster of each employee’s vaccination status; require employees to provide prompt notice when they test positive for COVID-19 and remove the employee from the workplace immediately; provide paid time off for workers to get vaccinated; and paid sick leave for any recovery time needed from vaccination side effects.  For workers who work remotely as a general rule, testing will only be required when the worker is going to come on-site (with a negative test required within 7 days of coming on-site).

Per the standard, workers are expected to pay for their own testing given that vaccines are “safe, free and the most effective way for workers to be protected from COVID-19.”  Employers are not required to pay for testing unless state law or a collective bargaining agreement says otherwise.  The mandatory masks for unvaccinated workers are also the responsibility of the worker.  Employers are not required to supply masks but must ensure that employees are masked properly.  These are departures from OSHA’s normal requirements that employers pay for/provide personal protective equipment to employees that are mandated in the workplace.

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