The Mandates

On September 9, 2021, the Biden administration instructed OSHA to develop an Emergency Temporary Standard (ETS) requiring employers who are subject to OSHA regulations, with more than 100 workers, to either mandate vaccination that employees receive the COVID-19 vaccination or be subjected to weekly testing for the virus.

The administration has also mandated vaccinations for federal contractors and subcontractors, as well as healthcare employers receiving Medicare and Medicaid funds, under separate rules. Task forces of the administration issued FAQs for the administration’s executive order on September 24 and a Memo implementing the federal contractor/subcontractor mandate on September 30. There is no option to test under the federal vaccination mandates (unlike the OSHA ETS) However, each of the mandates must include the requirement that employers consider exemptions and possible reasonable accommodations for individuals with sincerely held religious beliefs or medical conditions that prevent vaccination.

Where We Are…

The federal contractor/subcontractor vaccination mandate is in effect. The U.S. Department of Labor has taken the next step in advancing the ETS under OSHA by sending the rule to the White House for final review earlier this week. A final rule is expected to be issued by OSHA by the end of the month.

 Where We Are Going…

There are numerous unanswered questions on OSHA’s “vaccination or test” rule, as well as pending legal challenges.  Despite this uncertainty, employers are advised to begin the planning and policy development process to implement the final rules without delay.  Preliminary steps that employers should consider prior to the final rule’s issuance include:  (1) determining which mandates, if any, may apply to your workplace, (2) setting up a plan to determine employee vaccination status; (3) developing a policy and forms for employee exemption requests; and (3) providing employee education on Covid-19 policies, as well as providing access to medical sources for questions on the vaccine.

For more information, contact your Vogel Law Firm employment law team.