Earlier today, as directed by the Biden administration, OSHA announced
an emergency rule requiring vaccination or weekly testing for companies with 100 or more employees. There are multiple aspects of OSHA’s emergency rule that are likely to be challenged in court. For example, OSHA’s emergency rule states that its requirements preempt (or replace) state and local laws that ban or limit employers from requiring vaccination, face coverings, or testing. There are currently no less than 20 states (all with Republican governors) that have such laws in place.
Under OSHA’s emergency rule, covered employers must establish a vaccination policy no later than December 5, 2021. There are two policy options: a mandatory vaccination policy that requires vaccination for all employees (with exceptions only for employees’ medical conditions and/or religious beliefs), or a partial mandatory vaccination policy that requires unvaccinated employees to wear masks and submit to weekly testing. OSHA has published policy templates for each option here.
As noted above, OSHA’s emergency rule applies to employers with 100 or more employees. When counting employees, employers must include field workers and part-timers. OSHA’s emergency rule does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
OSHA’s emergency rule requires covered employers to provide up to four hours of paid time for each vaccination dose (but does not apply to booster shots). Covered employers must also provide a reasonable amount of time and paid sick leave for employees to recover from the side effects following each dose. Although not specifically stated in the OSHA’s rule, OSHA has published FAQs stating that two days of recovery time will be deemed reasonable.
Notably, OSHA’s emergency rule does not require employers to pay for any costs associated with testing. The emergency rule does contain detailed provisions relating to record-keeping, furnishing information to employees, and reporting COVID-19 fatalities and hospitalization.
There can be no doubt that there will be multiple lawsuits challenging the constitutionality of OSHA’s emergency rule, and certainly, no one can predict what the courts will say. But in the meantime, employers should start preparing a written policy that complies with OSHA’s emergency rule.
