COVID Vaccine Mandate Update



Date: November 10th, 2021  
From: Innovise Risk Control  
To:  All Clients and Others

RE: COVID Vaccine Mandate – OSHA Rule and Supreme Court – Where Are We at Today?

The rules regarding COVID-19 continue to ebb and flow at a rapid pace.

What we currently know:
On November 4th, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers of 100 or more employees, to implement COVID-19 vaccine requirements or require employees to present evidence of weekly negative COVID-19 tests.

This rule was swiftly met with challenges and on Friday, November 5th, the Fifth Circuit granted an emergency motion to stay the enforcement of the ETS.

What does this mean to employers? 
As this topic remains to be very dynamic, employers continue to be caught in the middle.  Employers are compelled to continue the delicate balance of meeting Federal, State, and Local requirements while maintaining a productive workforce and continuing operations.

It is best for employers to continue to understand the rigorous requirements of the ETS.  It is not clear what the impact of the Fifth Circuit will be as it did not indicate whether it intended the stay to be effective nationwide.  Additionally, there are other challenges filed in other jurisdictions and this will take time to sort through.   

Employers who wait to see what will happen may be caught with little or no time to prepare to meet requirements, should any or all ETS requirements ultimately be upheld.

Currently, the ETS is planned to be upheld January 4, 2022. 

Employers should continue to monitor local requirements as well as Federal decisions in the districts which they are operating.   See map below: 


What is required?
The ETS has numerous requirements for covered employers to follow, here are some of the more notable items:

  • Employers must determine the vaccination status of all their employees. Employees who do not provide proof of vaccination must be treated as not fully vaccinated.
  • Employers must maintain electronic or hard copies of the proof of vaccination for all employees.
  • Employers must maintain a “roster” of employees and their vaccination status (i.e., fully vaccinated, partially vaccinated, not fully vaccinated due to an accommodation, or not fully vaccinated because no proof of vaccination provided).
    • These records are considered “medical records” for purposes of confidentiality and must not be disclosed except as authorized by law. However, employers’ obligation to retain these records exists only while the ETS is in effect.
  • Employers must establish, implement, and enforce a written mandatory vaccine policy.
  • Employers are exempted from the mandatory vaccine policy requirement only if they establish, implement, and enforce a written policy “allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 … “  Additionally, those employees must wear a face mask.
  • Employers who choose this alternative must require employees who are not fully vaccinated to provide proof of a negative COVID-19 test every 7 calendar days. For employees who do not regularly work in areas where other employees or customers are present, they must be tested within 7 calendar days of entering such an area and provide proof of the negative test before entering the area.

Other items in the ETS include:

  • Employers are not required to pay for such testing, though they may do so if they wish. Other obligations, such as collective bargaining agreements or legal accommodations, may require such employer payment.
  • Employee proof of negative test or not allowed at worksite.
  • Employees who test positive for COVID-19 must not be forced to test again for 90 days.
    • These records are considered “medical records” for purposes of confidentiality and must not be disclosed except as authorized by law. However, employers’ obligation to retain these records exists only while the ETS is in effect.
  • For employees that report a positive COVID-19 test result employers are to exclude such employees from the workplace until:
    • The employee receives a negative result;
    • meets CDC return-to-work criteria; or
    • receives a recommendation to return to work from a licensed healthcare provider.
  • Non fully vaccinated employees to wear face coverings except:
    • When an employee is alone in a room with floor to ceiling walls and a closed door;
    • For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
    • When an employee is wearing a respirator or medical procedure mask; or
    • Where the employer can show that the use of face coverings is infeasible or creates a greater hazard.
  • Customers or visitors are not barred from voluntarily wearing face coverings.
  • Employers must provide a reasonable amount of time for employees to get vaccinated and must provide up to 4 hours of paid time to do so. Employers must also provide reasonable paid sick leave for employees to recover from any side effects of a vaccination.
  • Employers must inform employees, in a language and at a literacy level the employee understands:
    • The ETS’s requirements;
    • COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines”; and
    • OSHA’s anti-retaliation regulation found at 29 CFR 1904.35(b)(1)(iv) and the prohibitions on making false statements found in 18 U.S.C. 1001 and 17(g) of OSH Act
  • Compliance dates are:
    • ETS compliance by December 5. However, employers have until January 4, 2022, to comply with the ETS testing requirements. In order to avoid the testing requirement, employees must have received their last vaccination shot by January 4, 2022.

What we do not know currently is what will happen next.  Being prepared is the best practice at this time.   

For questions, Contact your Innovise Risk Control Team.

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