President Biden’s long-anticipated rulemaking on workplace vaccine mandates has been published by the Department of Labor’s Occupational Safety and Health Administration (OSHA). You can view the Emergency Temporary Standard rulemaking here.
What is the requirement and duration?
The standard requires mandatory vaccinations or weekly testing for the workers of large employers.
The standard is in effect for six months. After that, OSHA must replace it with a permanent standard.
Who is affected?
The standard applies to U.S. businesses with 100 or more employees firm- or company-wide. The 28 states and territories with their own worker safety agencies have 30 days to implement this federal OSHA standard or a stricter state version. Further, the OSHA measure arrives at the same time as a Centers of Medicare and Medicaid Services vaccine requirement for its health-care workforce.
Workers are expected to pay for their own testing because vaccines are considered safe, effective, free, and widely available. The only deviation from this would be if an employer is beholden to other laws or collective bargaining agreements requiring them to foot the bill. Notably, while the standard requires immediate removal of an employee that tests positive for COVID-19, it does not require employers to provide paid time off for positive COVID-19 diagnosis. Again, this could differ for companies in compliance with other state laws or collective bargaining agreements. However, employers will have to offer paid time off for employees to get vaccinated.
What are the deadlines?
The standard, though it takes effect November 5 when it is published in the Federal Register, contains two significant deadlines:
- December 5, 2021: Employers must have compliance program in place, offer paid time off for vaccinations, and require unvaccinated workers to wear masks
- January 4, 2021: Deadlines for workers to be vaccinated or begin weekly testing for COVID-19.
What are the penalties?
For lack of compliance, the fines are swift and steep. If a company is inspected and cannot produce records demonstrating compliance with the standard, OSHA has up to six months to issue a citation. Each “serious” violation could result in a maximum fine of $13,653. The cap for willful or repeat violations is $136,532. That said, businesses can request mediation for a lower penalty if they are cited. However, if enacted into law the Build Back Better Act would raise maximum fines for all OSHA rules to $70,000 for serious violations and $700,000 for willful or repeat violations.
How we can help?
Michael Best can help make sure your approach is both within the law and aligned with your organization’s needs and culture. Our Vaccination Policy Tool Kit is designed to cut through the confusion and empower you to make informed decisions. It provides practical advice and templates to help employers create their own workplace vaccination approach.
Check out our COVID-19 Vaccination Policy Tool Kit!
