Today, November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS) implementing President Biden’s mandate that all employers with 100 or more employees to require employees either be fully vaccinated or produce negative test results for COVID-19 on at least a weekly basis before coming to work.

By December 5, 2021, covered employers must have developed and implemented a policy that either mandates vaccination for all employees except those with medical or religious exemptions or permits weekly testing as an alternative to vaccination.

January 4, 2021, is the deadline for employees to be fully vaccinated or begin weekly testing and mask wearing.

Employer Obligations

Private employers with 100+ employees (including both full- and part-time regardless of location of work) firm or corporation wide must comply with the following requirements:

  • Develop, implement, and enforce a vaccination policy that either requires vaccination for all employees (except those with medical or religious exemptions) or allows employees to choose between vaccination or weekly testing and mask wearing instead of vaccination.
  • Determine the vaccination status of each employee, unless that information has already been documented by the employer as of the effective date of the ETS.
  • Maintain records for as long as the ETS remains in effect that contain each employee’s vaccination status, proof of employee’s vaccination status.
  • Maintain a roster of employees and their vaccination status.
  • Make these records available upon request to the employee or anyone having written authorized consent of the employee by the end of the next business day, the employee’s own records and the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
  • Support vaccination by providing employees up to 4 hours of paid time to receive each primary vaccination dose and paid sick leave to recover from any side effects following each primary vaccination dose.
  • Ensure testing of employees who are not fully vaccinated at least weekly or within 7 days of returning to work (if they have been away from the workplace for a week or more).
  • Require employees to provide prompt notice to the employer of a positive COVID-19 test or diagnosis.
  • Immediately remove from the workplace any employee who tests positive for COVID-19 or receives a COVID-19 diagnosis.
  • Keep COVID-19 positive employees out of the workplace until certain criteria are met.
  • Require face-coverings for employees who are not fully vaccinated when indoors or in a vehicle with another individual for work purposes.
  • Provide information to each employee in a language and at a literacy level that the employee can understand about the ETS, the policies and procedures of the employer, vaccine efficacy, safety, and the benefits of being vaccinated, and the prohibitions on retaliation and discrimination as well as the potential for criminal penalties for submitting false documentation.
  • Report COVID-19 fatalities to OSHA within 8 hours of learning about them.
  • Report COVID-19 in-patient hospitalizations within 24 hours.

The ETS does not require employers to pay for testing if the employee chooses not to be vaccinated. However, employers may be required to pay for testing because of other laws or collective bargaining agreements.

The ETS does not apply to employees who:

  • Work remotely 100% of the time.
  • Work exclusively outdoors.
  • Do not report to a workplace where other individuals are present.

However, these employees all count toward the 100 employee threshold.

Michigan has an OSHA-approved state plan, therefore MIOSHA will have 30 days to align its rules with the ETS.

Request for Comment

Although the ETS takes effect immediately, OSHA has requested comments on all aspects of the ETS and whether it should be adopted as a final standard. The comment period is open for 60 days.

The Rhoades McKee Employment Law Team is available to help guide employers through compliance with these and other regulations. We will provide further updates as more information becomes available.

More Publications