OSHA Workplace Vaccination and Testing Rules

In This Section

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) implementing new minimum requirements for workforce vaccination or weekly testing, applicable to employers with more than 100 employees. Employers are required to have a policy in place and unvaccinated workers are required to wear a facemask in the workplace by December 5, 2021. Testing requirements for employees who are not fully vaccinated will be effective January 4, 2022.

The full guidance is nearly 500 pages in length, and OSHA has released a collection of resources including a fact sheet, Frequently-Asked Questions, and recorded webinar summarizing the new rules. Orchestras are advised to review the material, which includes the following provisions:

• Employee Count: The FAQs released by OSHA indicate that all employees – regardless of full or part-time status, or location where work is performed – count towards the 100-employee threshold. Independent contractors are excluded from the employee count. The count is taken as of November 5, 2021, and the rules will apply to employers whose workforce grows to meet the threshold at any point while the ETS is in place. OSHA anticipates the ETS to be in place for at least six months. Note the following quote from the FAQ:
  • The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce.

• Employees Covered by Vaccination, Testing, and Masking Requirements: Once an employer is established to be subject to the new rules, the employer must develop, implement, and enforce a mandatory COVID-19 vaccination policy, or instead adopt a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. While all employers that meet the 100-employee threshold must have a policy in place, there are exceptions for whether specific employees are subject to the terms of the policy. The summary of the ETS explains the scope of covered employees:
  • The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.

• Exceptions for Masking: While employers must ensure that each covered employee who is not fully vaccinated must wear a face covering indoors, there are exceptions described in the FAQ:
  1. When an employee is alone in a room with floor to ceiling walls and a closed door.
  2. For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
  3. When an employee is wearing a respirator or facemask.
  4. Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).

• Unionized Workplaces: The FAQ issued by OSHA includes the following:
  • Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS. Nothing in the ETS, however, prevents employers from agreeing with employees and their representatives to implement additional measures, and the ETS does not displace collectively bargained agreements that exceed the requirements of the ETS. As examples of additional measures that could be implemented via collective bargaining, employers might agree to cover the costs of face coverings or medical removal, or to adopt a requirement that all employees, regardless of vaccination status, wear face coverings while working indoors.

The intent to implement new rules was announced by the Biden Administration on September 9, as part of a 6-Part COVID-19 Action Plan that also called for action by large entertainment venues to support vaccination and testing entry requirements. The element of the plan that relates to entry requirements for entertainment venues is currently framed as “calling” for action, and falls short of a federal mandate or a requirement. The workforce vaccine or weekly testing rules, however, are a federal mandate that supersedes state bans on vaccine, testing, and masking requirements, and would carry an estimated penalty of $13,600 per violation.

While this new standard is in place immediately, the rules will be open for public comment, and OSHA is also seeking feedback on the feasibility of employers below the 100-employee threshold eventually being subject to similar mandates. Attorneys general in at least 24 states have planned court filings in opposition to the rules. In advance of the release, the National Council of Nonprofits weighed in with early questions and concerns, highlighting the potential implementation costs to nonprofit employers. The League will keep you posted as further information becomes available.