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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 20, 2021

Stay Lifted on OSHA Vaccinate-or-Test Rule: DOL to Begin Enforcement in February 2022

In the latest court decision relating to the Biden administration’s various COVID-19 vaccination mandates, a divided three-judge panel of the US Court of Appeals for the Sixth Circuit Court lifted the injunction on the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (OSHA Rule). Citing increased infection rates and deaths with the Delta and Omicron variants, the court found that any damage from allowing the OSHA Rule to go forward was outweighed by the harm caused by continuing the stay. An immediate appeal has been filed with the US Supreme Court, which now has several mandate issues before it, including the OSHA Rule and the Centers for Medicare & Medicaid Services (CMS) health care worker mandate. To date, the Supreme Court has declined to interfere with other vaccine mandates, including, most recently, New York State’s health care worker mandate.   

As noted in our prior alert, the OSHA Rule requires all private businesses with 100 or more employees that are not subject to the CMS mandate to establish and implement either a mandatory vaccination policy or an alternative policy requiring weekly COVID-19 testing and face coverings for unvaccinated employees. Originally, the OSHA Rule set an initial deadline of December 5, 2021. According to a statement issued by the US Department of Labor (DOL) following the appellate court’s decision to lift the stay, the OSHA Rule will be effective January 10, 2022; however, OSHA will provide a grace period until February 9, 2022, for businesses “exercising reasonable, good faith efforts to come into compliance with the standard.”  

Employers choosing to allow employees the option to forego vaccination and test weekly must require unvaccinated employees to wear face coverings while at work. Employers must provide leave and pay costs associated with COVID-19 vaccinations, including the time to get the shot(s). For each dose of the vaccine, employees are allowed up to four hours of paid leave and reasonable paid sick leave for any side effects that result, if needed. Employers who do not mandate vaccinations are not obligated to pay for the time unvaccinated employees spend getting tested each week, the costs related to the testing, or any face coverings purchased. 

Employees who exclusively work remotely, outdoors, or where no other people are present are exempt from the OSHA Rule.

Employers will be subject to certain recordkeeping and reporting requirements. More specifically, covered employers must:

  1. Maintain records of each employee’s vaccination status and each test result provided by employees and 
  2. Report work-related COVID-19 fatalities to OSHA within eight hours and report work-related COVID-19 in-patient hospitalizations within 24 hours

Under the OSHA Rule, individuals who cannot be vaccinated because of medical conditions or sincerely held religious beliefs, practices, or observances may be entitled to a reasonable accommodation. Employers must ensure that any of these accommodations, if granted, minimize the risk of transmission of COVID-19 to at-risk individuals. For more information on this subject, please see Barclay Damon’s recently published legal alert regarding updated guidance published by the US Equal Employment Opportunity Commission (EEOC) addressing religious exemptions to COVID-19 vaccine mandates.

Barclay Damon will continue to monitor the latest developments pertaining to federal and state vaccination mandates and related enforcement efforts.

If you have any questions regarding the content of this alert, please contact Bob Heary, Labor & Employment Practice Area chair, at rheary@barclaydamon.com; Rob Thorpe, at rthorpe@barclaydamon.com; Margaret Surowka, counsel, at msurowka@barclaydamon.com; Payne Horning, law clerk, at phorning@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com
 

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