Friday, September 10, 2021

Mandatory COVID-19 Vaccinations for Employers of 100 or More

By Brian Farrington and Casey Erick


President Biden has announced that OSHA, the Occupational Safety and Health Administration, is developing an Emergency Temporary Standard (ETS) which will require that all employees of affected employers ensure that all their employees are vaccinated. Unvaccinated employees will have to be tested at least weekly.


We don’t yet know the effective date of this requirement, but since it’s an emergency standard, it doesn’t have to go through the normal notice and public comment period and can be implemented without delay.


The ETS will apply to employers of 100 or more employees—full time, part time, and temporary. State and local governments are not covered by OSHA standards. Federal employees will be required to show proof of vaccination under different mandates, and employees of federal government contractors will have their own mandate.


The Occupational Safety and Health Act (OSHA) allows states to have their own safety and health agencies. Such agencies will be required to implement similar standards or adopt the ETS. 


Under the ETS, employers will be required to allow paid time off for their employees to get vaccinated and/or to recover from any side effects.


Violations of the ETS will subject the employer to penalties of up to $14,000 per violation.


There are a lot of details which have not been announced, or determined, such as the timeline, although it appears the ETS will be issued within ten (10) days. We also don’t know whether employers will have to give employees paid time off for testing, what sort of paperwork will have to be maintained by employees, and many other details. Keep in mind that employers must keep employees’ medical information confidential and maintain it outside of normal personnel files. We assume that employees who have documented, valid religious objections under Title VII of the Civil Rights Act of 1964, and medical exemptions under the Americans with Disabilities Act, will not be required to show proof of vaccination under OSHA’s ETS, but this has not been announced. Such employees would presumably still be subject to the weekly testing requirements.


This measure is certain to be controversial. A number of governors and attorneys general have already announced that they intend to seek court intervention to stop the implementation of the ETS.

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