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OSHA Issues Vaccine Mandate

This morning the Occupational Safety and Health Administration announced the issuance of its much anticipated, highly controversial COVID vaccine mandate. The Emergency Temporary Standard, to be published in tomorrow’s Federal Register, becomes effective on publication. Employers are required to comply with its requirements within 30 days, except for the mandatory vaccines, which must be completed within 60 days. Although we anticipate litigation over OSHA’s legal authority to issue and enforce the ETS, its main requirements are summarized below:

Scope – applies to all employers with a total of 100 or more employees at any time; requirements do not apply to employees who work from home, do not report to a workplace where other individuals are present, or work exclusively outdoors.

Mandatory Vaccination Policy – employer must establish, implement and enforce a written mandatory vaccination policy; employees entitled to choose between mandatory vaccine or weekly testing (at employee’s expense, unless required by state law) and use of a face covering when indoors and occupying a vehicle with another person present. Valid requests for accommodations of disabilities under the ADA and sincerely held religious beliefs under Title VII are recognized.

Determination of Vaccine Status – employer must determine vaccine status of each employee, including whether employee is fully vaccinated; proof of vaccine required, along with record of each employee’s vaccine status. [Note: “I have been immunized” is not sufficient.]

Support for Policy – requires employer to support vaccination policy by providing reasonable time to obtain vaccine and up to four hours of paid time (including travel time) to do so; employer must also provide reasonable time and paid sick leave to recover from side effects following primary vaccination dose, for each dose.

Notice of Positive Test/Removal from Workplace – employees must notify employer of positive test for or diagnosis of COVID-19; employer must remove employee from workplace until employee receives a negative test result; meets CDC return to work criteria, or is released to return by healthcare provider; employer not required to provide paid leave during period of removal.

Employee Information – employer must provide employees with information on policy, vaccine, and OSHA prohibitions against retaliation. Information on vaccine: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html.

Additional Information – information about the ETS, compliance, FAQs, a sample policy and other resources are available at https://www.osha.gov/coronavirus/ets2

If you have any questions about the OSHA vaccine mandate, religious or disability accommodations or other issues related to mandatory vaccination policies, feel free to contact attorney Alan Seneczko at alseneczko@wesselssherman.com or (262) 560-9696.

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