OSHA details new mandatory COVID-19 vaccination policy for employers and employees 

November, 2021 - Marcus Crider, Joseph North, Kenshandra Mitchell, Rachel Tom-Quinn

In September, President Biden announced aggressive plans to combat the COVID-19 pandemic, taking the fight directly to the workplace and ordering mandatory vaccination or weekly testing to employers with 100 or more employees.

This week, the Occupational Safety and Health Administration (OSHA) issued anEmergency Temporary Standard(ETS) regarding the COVID-19 vaccination and testing requirements for employers. The ETS requires private employers with 100+ employees to develop, implement and enforce a mandatory COVID-19 vaccination policy for all employees or a mandatory weekly COVID-19 testing and face covering policy for unvaccinated employees.

Responsibilities of employers

The ETS applies to employers with 100+ employees at any time the ETS is in effect, regardless of industry. However, the ETS does not apply to workplaces covered by theCenters for Medicare & Medicaid Services ruleor thefederal contractor vaccination requirement. OSHA estimates that the ETS covers 84.2 million employees.

Although the testing requirement for unvaccinated employees is not effective until January 5, 2022, employers must be in compliance with all other requirements under the ETS - such as providing paid time for employees to get vaccinated and masking for unvaccinated workers - by December 5, 2021.

One key component of the ETS is the requirement that employers must support vaccination by providing employees with reasonable time, including up to four hours of paid time, to receive each vaccination dose as well as reasonable time and paid sick leave to recover from any side effects an employee experiences after each dose.

The ETS answers many of the questions fromBiden’s September 9 announcement, such as whether employers will be required to consider medical and/or religious accommodation requests, whether the vaccination versus testing “choice” is the employer’s or the employee’s, how to determine coverage under the ETS in the joint employment context, and whether the government will provide financial assistance to pay for the additional PTO.

Medical and/or religious exemptions

First, employees may seek exemption from the ETS requirements via medical and/or religious accommodation requests. OSHA estimates that about 5 percent of all covered employees will seek accommodations due to disability or a sincerely held religious belief, practice or observance that conflicts with the vaccination requirement. The federal laws that govern such accommodation requests exist independently of the Occupational Safety and Health Act and, therefore, OSHA does not administer or enforce those laws.


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