The Occupational Safety and Health Administration (OSHA) issued its much anticipated Emergency Temporary Standard, i.e. the Rule, for employers of 100 or more employees to implement a COVID-19 vaccine mandate or testing alternative a few weeks ago. Not surprisingly, the Rule requires employers to establish written policies to implement mandate-or-test requirements, which also must provide for exemptions for sincerely held religious beliefs and covered disabilities under the Americans with Disabilities Act. Also not surprising, the rule was subject to immediate (and pervasive) legal challenge throughout all of the federal courts of appeal.

As written, the Rule was effective upon publication (Nov. 5, 2021), with the following compliance deadlines:

1. Thirty days after publication (Dec. 5, 2021) — for all requirements other than testing for employee who have not been fully vaccinated

2. Sixty days after publication (Jan. 4, 2022) — testing for employees who have not been fully vaccinated

According to the Rule, employers that choose to allow for a testing alternative in lieu of mandatory vaccination must also require unvaccinated workers to wear face coverings. However, the Rule has no reference to a requirement for masking of fully vaccinated workers in the presence of unvaccinated workers, which has been the CDC’s recommendation since August 2021.

The policy behind OSHA’s Rule is to make it so that full vaccine mandates — without a testing alternative — is the simpler option from an administrative perspective. While the rule does provide guidance about what is sufficient proof of vaccination status, which can include an attestation, unvaccinated employees would need to submit to weekly testing, provide proof of a negative test, and continue to wear masks in the workplace.

OSHA is intending this Rule to be broadly applied, as the 100-employee trigger is corporatewide. OSHA does provide some additional guidance on their website in their FAQs which explain that this is a business-based count, not a location-based count, though it did build in some limited coverage exceptions. For example, remote workers and those who work exclusively outdoors are not required to comply.

Also important to note, the Rule will require employers to provide paid leave to employees for getting vaccinated (up to four hours, including travel time), as well as time for recovery from any associated side-effects from the vaccination. However, unlike earlier in the pandemic, the Rule does not require that employers provide paid time to employees who test positive for COVID-19.

Aside from the outcome of the pending legal challenge, a big question for employers has been: Who will be required to pay for the testing? The OSHA Rule does not require the employer to pay for testing. However, this may be required under applicable state laws and/or collective bargaining obligations in a union setting. Given the difficulty in finding tests that could be a result of this mandate — and the relatively high cost for non-diagnostic tests — employers should carefully consider whether they might run afoul of expense reimbursements requirements or minimum wage laws. According to the Rule, self-administered COVID-19 tests may only be used if observed by the employer or a telehealth proctor.

It is important to note that this Rule does not replace other more protective guidelines applicable to federal contractors and health care workers, or those issued by state OSHA partners.

Currently, the Rule is stayed and pending in front of the federal Sixth Circuit Court of Appeals, which includes Michigan, Ohio, Kentucky and Tennessee. And regardless of that outcome, the ultimate destination seems to be the United States Supreme Court. So while employers are in a holding pattern pending the result of the legal challenge, they are also well served to start the process of compliance so they are not left scrambling at the last minute if the Rule is upheld.

ADAM BARTROM is a partner the Labor and Employment Department of Barnes & Thornburg LLP’s Fort Wayne office. He can be reached at adam.bartrom@btlaw.com or 260-425-4629.

ADAM BARTROM is a partner the Labor and Employment Department of Barnes & Thornburg LLP’s Fort Wayne office. He can be reached at adam.bartrom@btlaw.com or 260-425-4629.

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