Update on New OSHA Emergency Temporary Standards Regarding Vaccine Mandates

On November 4, 2021, OSHA issued Emergency Temporary Standard (ETS) rules mandating companies with at least 100 employees implement a vaccination or testing mandate for all their workers. A PowerPoint provided by our partners at Cozen O'Conner goes into more detail and can be downloaded here. Currently, federal court has temporarily blocked implementation of the rules, but we encourage our members to understand and prepare for the upcoming deadlines.

The mandate provides two options for vaccine mandate compliance. Companies must either:

• require all employees vaccinate absent a legal exception to exempt themselves from vaccine mandates; or
• require employees to vaccinate or subject themselves to regular testing and wearing a face covering at all times on the job.

Part time and remote employees do count for the purpose of determining whether your company has at least 100 employees, but the vaccine requirements do not cover employees who do not report to a workplace where other employees or customers are present, work from home, or work exclusively outdoors.

Should the federal stay on the new guidelines be lifted beforehand, the deadline for all ETS requirements except for employee testing is December 5th. By December 5th, employers must have one of the two vaccination policies in place, must provide paid time to allow for employees to get vaccinated, and unvaccinated employees must wear a mask at all times. After January 4th, employees that are unvaccinated must begin the required weekly testing.

We have received several questions concerning how these requirements impact employees covered by collective bargaining. Generally, compliance with vaccine mandates is non-negotiable but the effects of the mandate (discipline, recall rights, vaccine accommodations, etc.) must be negotiated with the appropriate bargaining unit.