Nearly two months after President Biden announced that a federal emergency temporary standard (“ETS”) regarding a COVID-19 vaccine mandate for private employers would be forthcoming, the Occupational Safety and Health Administration (“OSHA”) has finally issued relevant guidance.  For example, OSHA published a fact sheet for the ETS on the agency’s website and announced that the final ETS will be published in the Federal Register on November 5, 2021.  An unpublished copy of the ETS is available here. 

The ETS is likely to have a significant impact on workforces across the country.  As such, it is vital that employers promptly review their policies and practices to ensure compliance with the ETS. 

Below are key highlights from the new materials:

1. Scope –
   • Employers – With respect to private employers, except in limited circumstances, the ETS applies to employers with 100 or more employees.
   • Employees – The ETS does not apply to employees who: (a) do not report to a workplace where others are present, (b) work from home, or (c) work exclusively outdoors.
2. Employer Obligations – Covered employers are required under the ETS to:
   • Develop, implement, and enforce either: (a) a mandatory COVID-19 vaccine policy; or (b) a policy that allows employees to choose to be vaccinated or to undergo weekly COVID-19 testing and wear a face covering. The ETS permits employers to require employees to pay for their weekly COVID-19 tests (subject to other applicable laws or collectively bargained agreements).
   • Determine the vaccine status of each employee (including collecting proof of, maintaining records of, and maintaining a roster regarding the same).
   • Provide employees with reasonable time off to receive each primary vaccination dose and/or recover from side effects of the same (including up to 4 hours of paid time off).
   • Require employees to notify the employer if they test positive for or are diagnosed with COVID-19.
   • Immediately remove from the workplace any employee who tests positive for or is diagnosed with COVID-19. Employers are not required to provide paid time off for removed employees (subject to other applicable laws or collectively bargained agreements).
   • Provide employees with relevant information regarding the ETS, workplace policies, and the COVID-19 vaccine.
   • Report certain COVID-19 related work fatalities and/or hospitalizations to OSHA.
   • Make certain COVID-19 related records available to employees and/or their representatives.
3. Effective Dates – Once the ETS is published in the Federal Register, employers must comply with the testing requirements by 60 days after such date (i.e., provided the ETS is published in the Federal Register on November 5, compliance is required by January 4, 2022). For most other provisions of the ETS, employers must comply by 30 days after such date (i.e., provided the ETS is published in the Federal Register on November 5, compliance is required by December 5, 2021).

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