New COVID-19 Standards for Certain Employers Effective Jan. 4, 2022 (Not Mandatory)

Today, the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") announced an emergency temporary standard that will affect 84 M private-sector workers.  Under the unpublished yet standard, employers with 100 or more employees must ensure vaccination of their employees or require employees to produce negative tests and wear a mask in the workplace.  Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy. 

The standard also requires employers to do the following:

• Determine the vaccination status of each employee and maintain records.
• Require employees to provide prompt notice of a positive COVID-19 test or diagnosis. Employers must then remove the COVID-19 employees from the workplace until they meet the required criteria.
• Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
• Ensure each unvaccinated worker provides a negative test for COVID-19 at least once a week or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

Employers who do not adhere to the requirements may be penalized with up to $13,650 fines per violation.

OSHA also provided a frequently asked questions page regarding the standard, a summary of the standard, and an online seminar. 

November 7, 2021 Update
The enforcement of the emergency standard was stayed by the Fifth federal circuit court. 

December 17, 2021 Update
The Sixth Circuit has reinstated OSHA's standard. 

January 13, 2022 Update
The U.S. Supreme Court has lifted the OSHA's standard.  This means that private employers do not have to impose a vaccination mandate on employees.