Employment Law Alerts

November 4th, 2021

Vaccine Mandate Update: US Department of Labor Issues Emergency Temporary Standard Regarding Mandatory Vaccination Policies

Earlier today, the U.S. Department of Labor’s Occupational Safety and Health Administration announced a new emergency temporary standard to protect workers from the spread of the coronavirus in the workplace. Under the emergency temporary standard, employers with 100 or more employees must establish a written mandatory COVID-19 vaccination policy or 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 emergency temporary standard is effective November 5, 2021. Employers must comply with most requirements within 30 days of publication (December 5, 2021) and with testing for employees who are not fully vaccinated within 60 days of publication (January 4, 2021).

Among other requirements, the emergency temporary standard requires employers to:

  • obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status;
  • provide up to four hours of paid time to receive each vaccine dose and paid sick leave to recover from the side effects;
  • 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);
  • require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and then remove the employee from the workplace—regardless of vaccination status—until they meet the required return to work criteria; and 
  • 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.

Compensation Requirements

Notably, the emergency temporary standard does not require employers to pay for testing or face coverings. But employers may be required to compensate for testing and provide face coverings to employees to comply with other laws, regulations, or collective bargaining agreements. 

Accommodations and Exemptions

Additionally, an employer implementing a mandatory vaccination policy can exempt employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.  

Finally, the emergency temporary standard does not apply to employees who do not report to a workplace where other individuals are present, work from home, or work exclusively outdoors. It also does not apply to (a) federal contractors and subcontractors covered under the Safer Federal Workforce Task Force COVID19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or (b) settings where any employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.

The emergency temporary standard is available here, and the Department of Labor’s comprehensive FAQs page is available here. 

If you have questions about the emergency temporary standard, please contact, Wendy Stryker at (212) 705-4838 or wstryker@fkks.com, Tricia Legittino at (310) 579-9632 or tlegittino@fkks.com, Jesse Klinger at (212) 826-5574 or jklinger@fkks.com,jklinger@fkks.com or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.