OSHA Rules Expected on Workplace Vaccine Mandates

Crowe & Dunlevy

The COVID-19 pandemic has brought new attention to vaccine mandates, an issue sparking difference of opinion throughout the country. The Biden Administration recently announced additional measures to encourage vaccination in the workplace, including required immunization or testing as a condition of employment for many employees.

Following recent changes, the question is no longer, “Can employers mandate vaccines?” but rather, “When will employers issue a vaccine mandate?” Official guidance is likely to be published in the near future. The Occupational Health and Safety Administration (OSHA) is expected to issue new rules in the form of an Emergency Temporary Standard (ETS) addressing mandatory vaccination policies for certain employers, with weekly testing as a possible alternative.

The OSHA rule would require private sector employers with 100 or more employees to mandate COVID-19 vaccines or require all unvaccinated employees to submit to weekly COVID-19 testing prior to reporting for work. Federal contractors and most health care providers accepting Medicare or Medicaid funding will also be required to mandate COVID-19 vaccines, subject to other regulations.

Covered employers will also need to offer paid time off for employees to get vaccinated and recover from any side effects. However, employers may choose to require employees to use existing paid time off rather than adding to current accruals.

When implementing mandatory vaccination programs, employers will need to keep in mind the Americans with Disability Act and Title VII, as there are likely to be employees who cannot or will not get vaccinated due to a medical condition or sincerely-held religious belief, and those employees may be entitled to a reasonable accommodation. Exemptions for protected individuals with certain disabilities or religious beliefs that prevent vaccination are likely to become a pressing issue over the next several months. Procedures should be put in place for supervisors to handle written requests, review eligibility with appropriate human resources guidance and consistently evaluate requests.

Business leaders should coordinate with their human resources department in anticipation of these upcoming policy changes. OSHA’s ETS and the Department of Labor will detail the specific requirements, outline information about exemptions and establish how long employees have to comply with the vaccination mandate. Employers should also brace for backlash over the new policies, with a plan in place for mitigating the potential impact on workplace morale and how to handle strong opinions.

Masking and social distancing requirements can continue but these will not be viable alternatives to circumvent mandatory measures under the new regulations. Offering an incentive such as additional paid time off or a cash bonus may help ease related tensions, with the ultimate goal of enhancing protections for your employees that keep the workplace safe and productive.

This article first appeared in The Journal Record on September 22, 2021, and is reproduced with permission from the publisher.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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