New OSHA Requirements for Large Employers: COVID-19 Vaccines or Masks and Testing

UPDATE: Update: The 5th U.S. Circuit Court of Appeals issued a temporary stay on Nov. 6 blocking the enforcement of the new OSHA Emergency Temporary Standard discussed below until the Court has considered potential statutory and constitutional issues with the regulation. As the Court considers legal challenges, employers covered by the regulation should continue to develop compliance measures so they are not caught off-guard if the legal challenges are resolved and the regulation goes into effect as-is.

New OSHA Emergency Temporary Standard Requires Employers with 100 or more Employees to Institute Mandatory COVID-19 Vaccination or Mask and Test Policy

1. all employees to be vaccinated (except for those with medical or religious exemptions who must wear masks and be tested weekly for COVID-19); or
2. all employees to be vaccinated or wear masks and test weekly for COVID-19, regardless of why they are unvaccinated.

The ETS also requires employers, among other things, to:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status;
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; and
• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

Employers must comply with most requirements by December 5, 2021 and with testing requirements by January 4, 2022.

In states with OSHA-approved state plans, such as Washington, employers will be covered by state occupational safety and health requirements.

The ETS does not apply to:

• Federal contractors/subcontractors;
• Healthcare industry employers already covered by other OSHA standards mandating vaccinations with no alternative for regular testing;
• Public employers in states without state plans; or
• Employees:
  - Who do not report to a workplace where other individuals are present;
  - While working from home; or
  - Who work exclusively outdoors.

If you have questions on the ETS or applicable state plans, or if you would like help instituting compliance measures, please feel free to contact: