New COVID-19 Vaccination/Testing Mandates for Private Employers: Who Must Comply and How?

by Philip M. Mannelly and Kristen T. Gallagher

On November 4, the Department of Labor, Occupational Safety and Health Administration, released new requirements to implement a vaccine directive that President Biden announced in September. On November 6, the U.S. Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of OSHA’s ETS and briefing on the temporary stay is scheduled to be completed by November 9. This is one of numerous anticipated court challenges.

Summary of Vaccine-or-Test Mandate
The key question is which businesses are impacted by OSHA’s Emergency Temporary Standard or CMS’ Interim Final Rule. As with many employment-related laws, the short answer is: It depends. But the answer is critical because if you are a private employer with 100 or more employees (to include part-time workers toward the threshold) then you are required to either (1) mandate COVID-19 vaccination for your workforce (allowing for certain medical and religious exemptions) or (2) require unvaccinated employees to demonstrate a weekly negative test and wear face coverings. If an employee does not supply a negative test or tests positive for COVID-19, employers are required to keep employees out of the workplace until certain conditions are met. Employers who do not comply could face significant monetary penalties and employers must act soon to meet the two-phased compliance deadlines of December 5, 2021 and January 4, 2022.

Summary of OSHA’s ETS Key Points

• What employers are covered?

  • The ETS applies to employers with a total of 100 or more employees at any time the standard is in effect. Part-time employees count towards the company total, but independent contractors do not, nor do temporary workers supplied by a staffing company.

  • For example, if an employer has 100 employees when the ETS first goes into effect and the workforce then drops down below 100, even significantly, the workforce is still subject to the ETS for the duration of time the ETS remains in effect. Likewise, if an employer has less than 100 employees when the ETS goes into effect but at any point thereafter grows to 100 employees, that workforce will be subject to the ETS from that point forward.

Read the entire article on the McDonald Carano website: https://www.mcdonaldcarano.com/news/new-covid-19-vaccination-testing-mandates-for-private-employers-who-must-comply-and-how/