On Thursday, November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees (“Employers”) to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

The ETS is effective immediately upon its publication in the Federal Register, November 5, 2021. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication. This means the testing requirements will go into effect January 4, 2022. OSHA anticipates the ETS will be in effect for six months, subject to OSHA’s monitoring the status of COVID-19 infections and deaths.

Federal contractors, subcontractors or healthcare employees are covered by executive order or a separate ETS for the healthcare industry.

The ETS requires Employers to do the following:

  • “Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).

  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. Employers are also not required to pay for face coverings.” Click here to view OSHA's recent news release. 

The penalty for non-compliance could carry a minimum fine of $14,000 per occurrence. An occurrence is defined as each instance an unvaccinated employee, without a negative COVID-19 test, works on company property. Fines can be as high as $136,532 for any employer who deliberately disregards the mandate.


How to Count Employees to Determine the 100-Employee Threshold

“The count should be done at the employer level (firm- or corporate-wide), not the individual location level. For a single corporate entity with multiple locations, all employees at all locations are counted. If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.” 

Numerous other scenarios, including franchisors/franchisees, staffing agency employees, part-time employees and employees working from home are discussed on OSHA's website here: https://www.osha.gov/coronavirus/ets2/faqs


Continue to Mind Anti-Discrimination Laws, Religion-Based Accommodations and New OSHA Anti-Retaliation Provision

All employers should continue to mind all federal, state, and local anti-discrimination laws and should prepare for contingencies in which a company should accommodate an employee’s medical or religious exemption request. OSHA has now included an anti-retaliation provision in the ETS, so that employees can notify their employer of COVID-19 hazards in the workplace, such as co-workers refusing to wear facemasks or wearing them improperly, without fear of retaliation.

The ETS is currently being challenged in several states, as State plans not in compliance must amend their standards to be identical or at least as effective as OSHA’s ETS. Tressler’s employment attorneys are dedicated to helping employers successfully navigate the myriad details and help create and implement a mandatory COVID-19 vaccination policy.

We’re here to help! Contact attorney Bicvan Brown for more information or a complimentary consultation.

Bicvan Brown Tressler Attorney

Bicvan Brown
Partner and Chair of Employment Practice Group
(949) 336-1633
Click Here to View Bicvan's Attorney Biography

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