On November 4, 2021, President Biden announced rules requiring COVID-19 vaccinations or weekly testing for companies with 100 or more employees.  These requirements will reach two-thirds of all private-sector workers in the United States.

The U.S. Department of Labor’s Occupational Safety and Health Administration’s (“OSHA’s”) Emergency Temporary Standard (“ETS”) will be officially published in the Federal Register on November 5, 2021, but an unpublished version of the 490-page document is available now. The ETS applies to all employers with a total of 100 or more employees at any time the standard is in effect.  For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS.  Part-time employees are included in the count of total employees.

Under the ETS, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

The ETS also requires employers to do the following:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace 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.

Notably, the ETS does not require employers to pay for testing or for face coverings, although the ETS notes that employers may be required to pay for testing to comply with other laws, regulations, or collective bargaining agreements.  Indeed, employers with fewer than 100 employees who require testing will have to pay for both the cost of the test and the employee’s time and expenses incurred in obtaining it pursuant to Labor Code section 2802, and both state and local regulations require that California employers supply masks for employees.  Further, all employers in California are required to pay the cost of any physical or medical examination required by the employer or by law pursuant to Labor Code section 222.5. 

The ETS is effective immediately upon its publication in the Federal Register on November 5, 2021. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.