OSHA Issues COVID-19 Vaccination Rule for Companies with 100 Employees or More

On Thursday, November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued the COVID-19 Vaccination and Testing emergency temporary standard (ETS) “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” On Friday, November 5, 2021, this rule was published in the U.S. Federal Register and took effect.

Under this standard, companies with 100 employees or more must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. According to OSHA, the ETS will cover two-thirds of the nation’s private-sector workforce.

Highlights of OSHA’s Vaccination Requirements for Large Employers

Highlights of this ETS include:

• Businesses will have until January 4, 2022 to ensure their workers are fully vaccinated.
• Beginning December 5, 2021, all workers who are not yet fully vaccinated must wear face coverings indoors, and those who do not get the vaccine by January 4 will be required to provide weekly negative COVID-19 tests.
• The ETS requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

Vaccination Requirement Exemptions, Including for Truck Drivers

There are some exceptions to this rule for companies with employees who work remotely, work in an environment with no other employees, or work exclusively outdoors; there are also some exemptions to these requirements for employees based on religious beliefs, disabilities, and medical conditions.

In their October 26, 2021 meeting with White House representatives on the proposed OSHA ETS, CGA President & CEO Rich Gottwald and Board Chair Chris Ebeling suggested that those job positions whose exposure to the virus is unlikely, be exempted from the vaccination requirement. Industrial gas industry drivers are secluded in their cab most of the time and delivery to customers involves minimal contact with others. The position on exempting truck drivers was put forth by other organizations as well, such as the American Trucking Associations.

OSHA appears to have adopted this position. Late on November 4, U.S. Labor Secretary Marty Walsh provided clarification on this matter, “If you’re a truck driver and you’re outside, you’re in a cab driving by yourself, this doesn’t impact you,” said Walsh.

Additional ETS Requirements

The OSHA ETS also requires employers 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 provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week).
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

For full details about this ETS, see the OSHA FAQ.

Federal Contractor Personnel Vaccination Requirement Also Extended to January 4, 2022

Also on November 4, 2021, the Biden Administration announced that it is revising the vaccination deadline for federal government contractor personnel from December. 8, 2021, to “no later than January 4, 2022.” The White House is revising the federal contractor deadline to align with the vaccination deadline in the OSHA ETS for employers with 100 or more employees.

The new deadline is for a covered government contractor employee to have received the final shot in their vaccine series. “Full vaccination” which, according to prior guidance from the Safer Federal Workforce Task Force, is only achieved two weeks after an employees’ final shot, need not be attained by January 4.