On November 4, the Department of Labor’s Occupational Safety and Health Administration released the details for its emergency temporary standard requiring all employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccinate-or-test-and-mask policy in their workplaces. By January 5, 2022, covered employees need to be either fully vaccinated or submit to weekly COVID-19 testing at the employee’s expense. Here are our initial takeaways:

What Is Required?

Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.

Employers must also:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider; and keep removed employees out of the workplace until they meet criteria for returning to work.
• Provide employees up to four hours of paid time off to get vaccinated and a “reasonable amount” of paid time to recover from any vaccination side effects. The employer can require the employee to use any accrued, but unused, sick leave.

The compliance date for all provisions is December 5 except for COVID-19 testing for employees who are not fully vaccinated. Those employees must begin weekly testing and masking on January 5, 2022.

Am I a Covered Employer?

The emergency standard applies to all employers with 100 or more employees. The calculation of employees is taken at any time the standard is in effect starting November 5. Once an employer hits that 100-employee threshold, it is required to comply for the duration of the standard regardless of fluctuations in the size of the employer’s workforce. The Department of Labor is currently seeking public comment on whether this threshold should be lowered to cover more employers.

In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. This includes minors, part-time workers, and seasonal workers. It does not include temporary workers provided by a staffing agency (those would be counted by the staffing agency) or independent contractors.

In the franchisor-franchisee relationship where each is independently owned and operated, each separate entity only counts its own employees. In other situations, two or more related entities may be regarded as a single employer if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.

The standard does not apply to federal contractors and subcontractors covered by the Safer Federal Workforce Task Force’s guidance or health care employers covered by the new Centers for Medicare and Medicaid Services standard.

Am I a Covered Employee?

The standard provides that, even where the standard applies to a particular employer, its requirements do not apply to employees: (1) who do not report to a workplace where other individuals such as coworkers or customers are present, (2) while working from home, or (3) who work exclusively outdoors.

An employee may also request a reasonable accommodation from testing, vaccinations, or masking based on the employee’s sincerely held religious belief or medical condition.

What If My State Forbids Mandatory Vaccination Policies?

The DOL made clear that it “intends to preempt any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.” Requirements, however, that apply to workers and nonworkers alike and regulate workers simply as members of the general public are not preempted.

Will the Standard Survive Legal Challenges?

The new regulation will face numerous legal challenges from state governments, interest groups, businesses, and affected individuals. These challenges are expected to ask federal courts to intervene and issue injunctions to prevent all or parts of the standard from taking effect. Employers should keep a close eye on legal developments as they plan their response to the standard.

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