Yesterday the Occupational Safety and Health Administration (OSHA) under the Department of Labor issued an emergency temporary standard requiring covered 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. This directive applies to two-third of the nation’s private sector workforce, covering employers with 100 or more employees, and the 26 states and two territories with OSHA State Plans. (For a map showing OSHA State Plans, click here: https://www.osha.gov/stateplans/.)

Under the directive, employers are also required to:

• 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 and not allow them to return to work until they meet the criteria.
• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly or within 7 days before returning to work under the return-to-work protocol.
• Ensure that in most cases each employee who has not been fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes.

Under the directive employers are not required to pay for testing. Employers may be required to pay for testing, however, according or other laws or requirements. In addition, the directive requires employers to provide paid time off to workers to get vaccinated and to allow for paid leave to recover from any side effects.

This directive is effective immediately and employers are required to comply with most requirements within 30 days and testing requirements within 60 days (by January 4, 2022). OSHA has also issued this directive as a notice for proposed rulemaking and is open for comment. The full notice can be found here: https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard.