Q&A on OSHA's upcoming vaccine mandate: What it means for HR.

AuthorConn, Rachel
PositionNuts & Bolts

On Sept. 9, President Biden instructed OSHA to issue an emergency temporary standard (ETS) that will require all companies with 100 or more employees to ensure their workforce is "fully vaccinated" and to require employees who remain unvaccinated to undergo testing on at least a weekly basis. This ETS is expected to be published in the coming weeks and take effect this fall.

How will the ETS be enforced?

While Federal OSHA has broad investigative and enforcement authority, most Fed/OSHA investigations begin with either employee complaints or reportable incidents. After such investigations, Fed/OSHA can assess penalties of up to almost $14,000 per violation, meaning a failure to comply with this mandate could get very costly for employers.

How will the 100-employee threshold be counted?

There are various ways to count employees. It is not yet clear what standard will apply. However, given the sweeping nature of the mandate, we expect this threshold will be applied as broadly as possible.

Will employers have to pay for testing?

The announced plan does not specify who will pay for the costs of the required weekly tests, whether employers will be required to provide paid time off for testing or what tests employers may accept to meet the (weekly) requirement.

Will this ETS apply to remote workers?

The phrasing of President Biden's announcement, as well as the White House publication, point to the requirement being for employees who are "coming to work" as opposed to those who are working from home. However, the ETS will likely have exemptions for those workers who do not have workrelated contact with other persons.

How will 'fully vaccinated' be defined?

The CDC currently considers an individual to be "fully vaccinated" two weeks after either their second dose in a two-dose series, such as the Pfizer or Moderna vaccines, or their only dose of a single-dose Johnson & Johnson vaccine. Despite the current debate surrounding booster shots, it is expected the ETS will track the existing CDC guidance.

Will there be exceptions allowed for medical conditions and religious beliefs?

Statements made by President Biden and other White House officials indicate the vaccine requirements will allow for vaccination exemptions for those with medical conditions or sincerely held religious beliefs that prevent vaccination. It is not clear whether the ETS will provide more guidance than the somewhat sparse FAQs on this topic issued by the EEOC regarding required...

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