In September, President Biden announced his administration would require employers with 100 or more employees to impose COVID-19 vaccination or testing requirements. On November 4, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) detailing the President’s vaccine mandate. The mandate starts to take effect on December 5, 2021, with a vaccine or test deadline of January 4, 2022. The rule will remain in effect until May 5, 2022.
- All unvaccinated workers must begin wearing masks by December 5 and provide a negative COVID-19 test on a weekly basis beginning January 4, 2022.
- Employers must provide employees paid time off to get vaccinated and recover from any side effects.
- Employers are not required to pay for COVID-19 tests or provide paid time off to get tested unless required to by state or local laws or in labor union contracts.
Employers Covered by the ETS
The ETS applies to all employers with 100 or more employees,* except:
- Employers subject to the OSHA COVID-19 Healthcare ETS (6/21/21);
- Employers subject to the federal contactor COVID Executive Order (9/9/21).
*Employers must determine this 100-employee threshold as of November 5, 2021. Part-time, temporary, and minor-aged employees are counted. Once an employer meets the 100-employee threshold, no subsequent action will negate applicability of the ETS, and the employer will be subject to its requirements until May 5, 2022.
Written Vaccination Policy Required
The ETS requires a covered business to develop, implement, and enforce:
- A written mandatory vaccination policy requiring employees to be fully vaccinated; the policy must also include a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions; or
- A written policy requiring employees to either be fully vaccinated or undergo weekly testing for COVID-19 (providing proof of negative result to their employer) and wear a face covering while at work.
Employees Exempt from the ETS
Under the ETS, the following employees are exempt from vaccination and testing requirements:
- Those working fully remote from home;
- Those who report to a worksite where no other people are present;
- Those working exclusively outside.
The employer must maintain a record of each employee’s vaccination status, acceptable proof of vaccination, a roster of employee vaccination status. For those giving employees the option to undergo weekly testing, employers must also maintain proof of negative tests for each employee.
NFIB’s Advocacy Against the Mandate
NFIB has been at the forefront of opposing this government overreach. A letter NFIB sent to the Secretary of Labor outlined the reasons for NFIB’s opposition. On November 4, 2021, after publication of the ETS, NFIB again expressed its opposition:
“NFIB remains opposed to this rule that restricts the freedom of small business owners to decide how best to operate their businesses and imposes unwarranted burdens on small businesses that further threaten the small business recovery.”
- Karen Harned, Executive Director of NFIB Small Business Legal Center
The NFIB Legal Center is in the process of reviewing the ETS and determining how best to proceed on behalf of the small business community. If you have any specific questions or concerns about this mandate, we encourage you to reach out to the Legal Center at [email protected].
November 5, 2021