Federal OSHA Vaccine Mandate for Large Employers

Federal OSHA Vaccine Mandate for Large Employers

On November 4, 2021, federal OSHA announced a new Emergency Temporary Standard on Vaccination and Testing for employers with at least 100 employees.  The ETS requires the following:

1. Covered employers to require a mandatory vaccination policy unless the unvaccinated employees are required to submit to weekly testing and to wear an appropriate facemask at work.

2. Covered employers must provide paid time off for workers to obtain a COVID-19 vaccination as well as paid sick leave to recover from side effects that prevent vaccinated persons from working.

3. Employers must comply with virtually all provisions of the ETS within 30 days after publication. These provisions include:

1. Establishing a vaccination policy;

2. Determining the vaccination status of each employee and obtain proof;

3. Requiring employees to notify you of a positive COVID-19 test or diagnosis;

4. Excluding COVID-19 positive employees from the workplace;

5. Requiring employees not fully vaccinated to where face coverings indoors.

California maintains a federally approved state safety and health plan.  As such, it must adopt standards at least as effective as the federal OSHA standards.  Cal/OSHA recently posted this on its FAQ page:

Q: If federal OSHA adopts a standard obligating employers with 100 or more employees to require COVID-19 vaccines or weekly testing, what will happen in California?

A: California maintains an occupational safety and health plan that is approved and monitored by federal OSHA. As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s, in accordance with Section 18 of the federal Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).

If federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, the State will have 30 days after the date of promulgation of the federal standard to adopt a comparable standard.

Larger California employers can expect a similar requirement.  California may attempt to implement a mandate among smaller employers as well.

We recommend that employers immediately conduct a survey to determine the vaccination standards of employees.  This will give you the ability to quickly respond to any possible changes in the Cal/OSHA ETS.