Biden Clarifies COVID-19 Rules for Employers

November 10, 2021

Publication| Labor & Employment

In an effort to boost lagging vaccination rates across the country and as part of its Pathway out of the Pandemic, the Biden Administration charged the Department of Labor, through the Occupational Safety and Health Administration (“OSHA”) and the Centers for Medicare and Medicaid Services, to clarify and implement its recent COVID-19 mandates through rules for large employers and healthcare workers.  

The eagerly awaited rules in the form of an Emergency Temporary Standard, issued by OSHA (the “OSHA Rule”), will take effect in part by December 5, 2021 and in full by January 4, 2022.  The OSHA Rule will require private employers with 100 or more employees to ensure that each of their workers is either fully vaccinated or tests negative for COVID-19 at least once per week.  After its issuance last week, on November 6, 2021, the Fifth Circuit Court of Appeals temporarily blocked enforcement of the OSHA Rule related to the large employers vaccine or test provisions.  The court cited “grave statutory and constitutional issues” with the rule and issued an emergency stay in response to a lawsuit filed by several states and private entities challenging the rule.  The court gave the federal government until 5:00 PM on November 8, 2021 to respond.  We will continue to monitor developments.  In the meantime, it is best to be aware of the key provisions of the OSHA Rule in the event it moves forward.

The stated purpose of the OSHA Rule is to “establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”  The OSHA Rule makes clear that the new provisions preempt inconsistent state or local laws. 

The rule requires private employers with 100 or more employees to establish a written mandatory vaccination policy by December 5th requiring employees to be fully vaccinated unless “the employer establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to either be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 … and wear a face covering.”  The OSHA Rule defines a “mandatory vaccination policy” to require vaccination of all employees, including new employees, as soon as practicable, except for when: (i) a vaccine is medically inadvisable, (ii) medical necessity requires a delay, or (iii) there is a legal entitlement to a reasonable accommodation under federal civil rights laws due to a disability or sincerely held religious belief, practice, or observance.  The policy must inform employees about the applicable exclusions, paid time off related to vaccination purposes, and the methods for collecting proof of vaccination and testing.

Employers must collect and maintain records of their employees’ vaccination statuses by December 5, 2021.  As of that date, all employees who are not fully vaccinated must wear face coverings when indoors or inside a vehicle with others for work. 

Notably, employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors are exempted from coverage, but would need to comply if circumstances change.

Employers need to provide additional paid time off for employees to be vaccinated and recover (up to four hours separate from any accrued PTO, vacation, or sick time).  Conversely, and importantly, in furtherance of the purpose of the OSHA Rule, employers do not need to provide or pay for weekly testing.  Specifically, unvaccinated employees, including those who are unvaccinated for medical or religious reasons, as of January 4, 2022, may not enter the workplace unless they have received a negative COVID-19 test result within seven days of entering the workplace, and must wear a face covering.  The testing needs to be verified and must involve either the employer or a healthcare provider.  Employers are responsible for retaining the results of each test.

Covered employers must inform each employee about the provisions of the OSHA Rule and must provide the document, “Key Things to Know About COVID-19 Vaccines,” along with the employer’s written vaccination policy, also by December 5th.

A second rule, an interim rule, issued by the Centers for Medicare & Medicaid Services (the “CMS Rule”), will require healthcare workers at facilities participating in Medicare and Medicaid to be fully vaccinated.  Unlike the OSHA Rule, the CMS Rule does not include a weekly testing option.

A link to the published rule follows:

If you have any questions, please contact an RLF employment attorney.

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