November 4, 2021 

The Occupational Safety and Health Administration (OSHA) announced its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) that requires many employers to implement mandatory COVID-19 vaccination policies or require unvaccinated employees to undergo regular testing and wear a face mask at work. The full text of the new rule is 490 pages long, but OSHA has also provided a brief fact sheet summarizing the key components, available here.

Who does this new rule apply to?

The ETS applies to private employers with 100 or more employees company-wide, including all full-time, part-time, and temporary employees. It does not cover public employers in states, such as Ohio, that do not have OSHA-approved State Plans. It does not cover employers already subject to the federal contractor requirements or the Healthcare ETS.

What does it require of covered employers?

Covered employers must either (1) implement a mandatory COVID-19 vaccination policy, or (2) implement a policy that gives employees the choice of vaccination or weekly testing and wearing a face mask at work.

When does it take effect?

The ETS will be published in the Federal Register and effective tomorrow, November 5, 2021, but employers will have 30 days to implement most of the requirements, and 60 days to implement testing in lieu of vaccination if the employer provides that option.

Does the ETS apply to all employees of a covered employer?

No. The requirements do not apply to employees who work from home, work exclusively outdoors, or do not report to a workplace where others are present.

Do employers need to provide paid time off for employees to get vaccinated?

Yes. Employers must provide a reasonable amount of paid time off (up to 4 hours) for employees to receive each primary dose of the vaccine and a reasonable amount of time and paid sick leave to recover from side effects of the vaccine.

Does the ETS require employers to pay for the costs of weekly testing if they provide that option in lieu of vaccination?

No. Under the ETS, employers may require employees who opt for testing in lieu of vaccination to cover any costs related to getting themselves tested. Please note that although the ETS does not require employers to pay for such testing, it may be required by other laws, regulations, or the terms of a collective bargaining agreement.

What do employers need to do if an employee tests positive for COVID-19?

Employers must require employees to promptly notify them of a positive test or diagnosis. Once aware of such a positive test or diagnosis, employers must remove the employee from the workplace immediately and keep them out of the workplace until return to work requirements are met. Any work-related COVID fatalities or in-patient hospitalizations must be reported to OSHA.

What steps should employers be taking right now?

Covered employers should start developing their COVID-19 policies and procedures immediately, as they will need to be in place by December 5, 2021. Employers will also need to collect information about employee vaccination status in order to implement and enforce their policies. In addition, employers should prepare a communication plan to deliver information to employees and address questions about the ETS, COVID-19 vaccines, and the employer’s policies.

The Walter | Haverfield labor and employment team will keep you updated as further developments arise. Please contact us if you have any questions regarding OSHA’s new vaccination requirements or if you need assistance developing, implementing, or enforcing the policies mandated by the ETS.

Russell T. Rendall is senior counsel at Walter | Haverfield and focuses his practice on labor and employment law. He can be reached at rrendall@walterhav.com or at 216.658.6237.