Key Points
On Thursday, November 5, 2021, the OSHA released its rules for the “emergency” vaccine mandate months after the Biden administration announced it. This mandate only applies to employers with 100 or more employees and will be enforced by OSHA. This mandate does not recognize natural immunity as a valid exemption from being vaccinated even though it is proven to provide superior protection. The message here is comply or be unemployed regardless of what it does to the already fractured supply chain. Several states and private individuals have already filed lawsuits combatting these rules. There are exemptions for religious beliefs and medical issues preventing vaccination.
Penalties for employer
OSHA may fine a covered employer that does not comply with the ETS(emergency temporary standard) up to $13,653 for each violation of the standard. Employers that willfully or repeatedly violate the standard can be fined up to $136,532. However, the Build Back Better Act, if enacted, would raise the maximum fine to $700,000.
Vaccination Requirements
Paid Leave
- Employer must provide up to 4 hours of paid time off for ermployees to get vaccinated.
- Employers must provide reasonable time to recover from vaccine side effects. A time allotment has not been set but OSHA say 2 days is acceptable.
Masking and testing
Vaccinated employees are not required to wear a mask but can not be prevented from wearing one. Vaccinated employees will not be required to take covid-19 tests.
Vaccine Record Keeping
A physical or digital copy of the vaccination record must be kept by the employer. The record must be kept confidential as it is private medical information.
Unvaccinated worker requirements
If an employee does not provide the result of a COVID-19 test as required by paragraph (g)(1) of the standard, the employer must keep the employee removed from the workplace until the employee provides a test result. In addition to being tested for COVID-19 on a weekly basis, unvaccinated employees must also wear a face-covering at the workplace.
Employers do not have to pay for weekly testing of unvaccinated workers.
Testing Requirements
Religious and medical exemptions are allowed.
- tests must be cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
- administered in accordance with the authorized instructions; and
- not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
The ETS (emergency temporary standard) requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.
Testing records
The employer must maintain a record of each test result required to be provided by each employee pursuant to this ETS or obtained during tests conducted by the employer. These records must be maintained in accordance with 29 CFR 1910.1020 as employee medical records and must not be disclosed except as required by this ETS or other federal law. However, these records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) (Employee medical records), but must be maintained and preserved while this ETS remains in effect.
Masking
- Unvaccinated employees must wear a face covering when inside or when in a vehicle with someone for a work related reason.
Masking exceptions
- Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
- When an employee is alone in a room with floor to ceiling walls and a closed door.
- For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
Exceptions to vaccination and testing
The ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. For more information about evaluating requests for reasonable accommodation, employers can consult the Equal Employment Opportunity Commission’s website
Faq for new OSHA rules
For the full list of questions and answers visit OSHA’s website.