by Nick Golding, Jordan Heck, and Olivia Robinson
Published November 5, 2021
Yesterday, the Occupational Safety and Health Administration (OSHA) issued its long-anticipated emergency rule mandating private employers with 100 or more employees to develop, implement, and enforce policies requiring employees to either receive COVID-19 vaccinations or undergo weekly testing and wear face masks at work.
Requirements and Compliance Deadlines
OSHA’s rule takes effect on Friday, November 5, and it sets forth several compliance deadlines for employers. By December 5th, employers must implement policies providing paid time off for employees to get vaccinated and sick leave to recover from any side effects preventing them from returning to work. Unvaccinated employees are also required to wear face masks at work starting December 5th.
By January 4, 2022, all employees will need to have received either both doses of the Pfizer or Moderna vaccine or the single dose of the Johnson & Johnson vaccine. However, employees may still request and potentially qualify for medical or religious exemptions from this mandate.
Also, beginning January 4, 2022, unvaccinated employees must provide a verified negative test to their employer at least once a week and continue to wear face masks at work. Employees who test positive may not remain in the workplace. Employers may require unvaccinated employees pay for testing expenses themselves, but this requirement may be affected by applicable collective bargaining agreements.
Potential Fines for Violations
Employers found not enforcing OSHA’s rule could face fines up to $13,653 for each serious violation. Employers, who deliberately ignore the mandate, could be found in willful violation of the rule and fined up to $136,532.
Impact on States
Implementation of OSHA’s rule in the 22 states that have their own worker safety agencies for private employers – including Indiana and Kentucky – could be delayed. Each state has 30 days to decide whether to implement OSHA’s rule as written, make modifications, or draft an equivalent or stricter rule. Legal challenges to OSHA’s rule from several state attorneys general are also expected to be filed in the near future. Employers should monitor the potential impact of these developments, though it is prudent to begin planning how to implement these requirements before the deadlines set forth above.
For additional information on this or any related topic, please contact any of the KDDK labor and employment law professionals.