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OSHA Issues COVID-19 Vaccine or Testing Mandate

By: Christopher R. Henderson, Esq.

The Occupational Safety and Health Administration (OSHA) issued its emergency temporary standard (ETS) today requiring private sector employers with over 100 employees adopt and implement mandatory vaccine policies for their workforces. While the ETS totals more than 400 pages, here are the highlights and relevant timeline: 

  • December 5, 2021 – unvaccinated employees must begin wearing a mask at work. 
  • January 4, 2022 – Employees working for covered private sector employers must be fully vaccinated. Fully vaccinated is currently defined by the CDC as 2 weeks after the second dose of a two-dose series (Pfizer or Moderna), or two weeks after a single dose series (Johnson and Johnson). 
  • Employees who are not fully vaccinated by January 4, 2022, will have to produce a verified negative test to their employers every week. Employees who test positive for COVID-19 or receive a diagnosis from a licensed health care provider must be removed from the workplace. 

Starting December 5, covered employers must provide employees with paid time off to receive vaccinations as well as sick leave to recover from the side effects of the vaccination. Importantly, the rule does not require employers to pay for the tests for those unvaccinated employees. In a private sector unionized setting, the parties could bargain to a different outcome where the employer could pay for some, all, or none of the required weekly testing.

Penalties for non-compliance with OSHA’s mandate could result in fines in the amount of $13,653 for a single violation and up to $136,532 for a willful and serious violation.

The bottom line is that covered employers must develop, implement, and enforce a vaccination policy or a policy requiring employees to either get vaccinated by January 4 or undergo regular testing and wear a face mask at work. 

For public sector employers in Connecticut, covered by Conn-OSHA, the rule gives Conn-OSHA a thirty-day window to implement their own rules that will need to be as effective if not more effective than the federal standards. 

CMS also issued new vaccination requirements for health care workers.  Workers at health care facilities participating in Medicare or Medicaid must be fully vaccinated by January 4.  The rule applies to clinical and non0clinical employees who work at a covered facility. 

According to a White house press release, employers will not have to track multiple requirements for the same employees as the ETS with not apply to workplaces subject to the CMS or federal contractor vaccinations rules.

Our attorneys will continue to review the latest developments and will update this guidance with more specifics, as needed.