The Emergency Temporary Standard (ETS) has officially been released by the Occupational Health and Safety Administration (OSHA) today (11/5/21) and businesses have until December 5, 2021 to ensure their workplace is compliant with the rules outlined in the mandate with weekly testing of unvaccinated employees commencing on January 4, 2022.

Businesses with 100+ employees

The ETS only applies to businesses with 100+ employees, which reflects an estimated 84 million workers. However, small businesses may decide to follow the mandate rules or implement COVID precautions that work for their business.

December 5th deadline

OSHA has announced the deadline for compliance as December 5, 2022. This means a COVID-19 plan must be made and shared with employees and any unvaccinated individuals must start wearing masks while at work. Then starting on January 4th, employees either need to be fully vaccinated against COVID or take weekly COVID test results if they are unvaccinated.

Time off for vaccinations

All employers must offer paid time off for employees to get their vaccination and recover from any side effects.

Employers are not responsible for the cost of Covid testing

In an effort to incentivize employees to get vaccines, the ETS does not require employers to pay for testing for their unvaccinated employees unless they are otherwise required to by state or local laws or in labor union contracts.

There will be large fines for non-compliance, but the mandate will be largely self-enforced

There is no way for a couple thousand OSHA inspectors to check up on the compliance of millions of workplaces. This means that the new mandate will largely be self-enforced. However, OSHA will do investigations if there are employee complaints and will also add COVID inspections to their to-do list when they are already on-site somewhere. If OSHA finds any employer violating rules, the employer may face fines up to $13,653 per violation and 10 times that for repeat or willful violations.

Federal workers and contractors are required to get vaccinated

Federal workers have until November 22nd to be fully vaccinated and federal contractors have until January 4th to be fully vaccinated. For both of these groups, there will be no "test out" (aka weekly testing) option.

Under a separate rule, Healthcare workers are required to get vaccinated

Another rule with the same January 4th deadline has been released by the Centers for Medicare & Medicaid Services. All staff - clinical and non-clinical - that work within a Medicare or Medicaid facility are required to get vaccinated and will not have the option to "test out." This rule is estimated to affect 17 million healthcare workers.

Challenges to the mandate are expected in the coming days. Already, on September 16th, 24 states questioned the legality of the mandate. Specifically noting that a vaccine requirement may drive further skepticism of the COVID vaccine, as well as cause workers to leave their job in an "already-too-tight labor market."

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