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Biden Administration Formally Introduces its Employer Vaccine Mandate

On November 4, 2021, the Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) released their much-anticipated vaccine mandate for companies with 100 employees or more. 

This mandate has been released under and Emergency Temporary Standard (ETS) and employers will have 30 days after its published in the Federal Register to begin complying with most of the provisions of the ETS. Furthermore, employers will have 60 days from the ETS' posting in the Federal Register to begin complying with the testing requirements in the rule. Of particular note, the ETS does not apply to federal contractors or subcontractors nor does it apply to healthcare workers. Federal contractors and subcontractors are required to follow the Executive Order issued by President Biden requiring vaccines for all government employees and contractors, additionally health care workers are required to follow the healthcare ETS issued by the Centers for Medicare and Medicaid Services (CMS).
 
The ETS issued today requires companies with 100 employees or more to require all of its employees to be fully vaccinated, meaning 2 shots of either the Pfizer or Moderna vaccines, or one shot of the Johnson and Johnson vaccine. The ETS requires employers to determine and verify acceptable proof of the vaccination status of each of its employees. Employers who do not mandate a vaccination policy for its employees must establish a testing policy for its unvaccinated employees, which includes, at a minimum, weekly testing. Additionally, unvaccinated employees must be required to wear a mask when indoors or when inside a vehicle with another person for work purposes. 

In addition to the vaccine and testing mandates, the ETS requires employers to provide employees with up to 4 hours of paid time off in order to receive each dose of the vaccine. Additionally, the rule requires employers to provide paid sick leave to allow for employees to recover from the vaccine. In addition to the time off, employers must provide employees with information about the vaccine, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated. OSHA recommends a document from the Centers for Disease Control (CDC) entitled “Key things to know about the COVID-19 Vaccines”. You may find that document by clicking here. Finally, the ETS requires employers to report work-related COVID fatalities to OSHA within 8 hours of learning of the death, and it requires employers to report any work-related COVID hospitalizations within 24 hours.

The vaccine mandate is set to go into effect on January 4, 2022, meaning any employees who are not fully vaccinated will need to undergo mandatory weekly testing and wear a mask while indoors. This date is in line for the vaccine mandates set out in the federal contractor and healthcare worker vaccine mandates. Employers must be in compliance with all other aspects of the ETS by December 5, 2021. This includes the reporting requirements to OSHA, the paid time off and sick leave, and he masking of unvaccinated employees. You may view the ETS posted in the Federal Register by clicking here. If you have any questions regarding the vaccine mandate please contact Andrew Stasiowski at astasiowski@trala.org or Jake Jacoby at jjacoby@trala.org.    
    
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