New York, N.Y. (November 5, 2021) -  Employers nationwide have waited anxiously following the Biden Administration's September 9 announcement that a new set of rules would be forthcoming governing vaccination for employers with large workforces. On November 4, 2021, the federal Occupational Safety and Health Administration ended the suspense by issuing an Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to ensure their workforces are fully vaccinated to the extent possible, and requiring regular testing and other safeguards for those employees who are not vaccinated.

Critically, the new ETS obligates employers to accommodate individuals for medical reasons and sincerely held religious beliefs. And while it does not require that all employees be vaccinated, unvaccinated employees are required to undergo regular testing and to observe masking protocols. OSHA's rationale is that "workers are becoming sick and dying unnecessarily as a result of occupational exposures." The ETS is effective immediately, and employers will be required to adhere to all of its requirements within the next 30 to 60 days.

The Biden Administration had directed OSHA to develop a new rule requiring all employers with 100 or more employees to ensure their workforces are fully vaccinated. At that time, because OSHA did not release draft language to the public, numerous questions about the obligations being placed on large employers and the potential accommodations and exemptions for employees remained unanswered. Today, many of those questions appear to have been answered. The key takeaways include the following:

  • The ETS applies to any employer that has 100 or more employees company-wide at any time while the rule remains in effect.
  • The ETS remains applicable to an employer once that 100 employee threshold is breached, even if the workforce fluctuates below 100 total employees at any time.
  • Unvaccinated employees will be required to undergo testing at least once per week at their own expense, subject to state or local law.
  • Employees may use any test that has been cleared, approved, or authorized by the Food and Drug Administration to detect COVID-19 infection, including rapid tests. However, due to the potential for employees to falsify results, tests must have "independent confirmation" – that is, any test that is both self-administered and self-read is not acceptable unless the test is observed by the employer or an authorized telehealth proctor.
  • Unvaccinated employees will be required to wear a mask in the workplace, again at their own expense, when indoors and when occupying a vehicle with another person for work purposes.
  • Employers are required to maintain a record of each employee's vaccination status, as well as a record of each test result provided by the employee.

Notably, three types of employees are exempt from the rule's requirements – those who do not report to a workplace where other individuals are present, those who work from home, and those who work exclusively outdoors.

The 5-page rule and its 149-page preamble places substantial requirements on employers. All covered employers should immediately review their operations and develop policies and procedures to ensure compliance.

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