The much-anticipated vaccine rule is here.  On November 4, 2021, and in response to President Biden’s Executive Order, the Department of Labor, through the Occupational Safety and Health Commission, issued the Emergency Temporary Standard (“the Rule”), requiring mandatory vaccination or weekly COVID testing for many U.S. employers.  The Rule is effective immediately.

Employers must begin implementing facial covering requirements for employees who are not fully vaccinated, and also providing paid leave for time to get vaccinated, no later than December 5, 2021.

Employers’ mandatory vaccine policies must require that covered employees are fully vaccinated or provide proof of weekly testing beginning no later than January 4, 2022.

Who Does the Rule Apply To?

The Rule applies to employers with 100 or more employees company-wide.  This includes part-time employees.

What Does the Rule Require?

The Rule requires covered employers to implement a written policy which states as follows:

1. Covered employees must be fully vaccinated against COVID-19; or

2. Covered employees must provide proof of weekly testing for COVID-19 and wear a face covering.

COVID Vaccination

To comply with the Rule, covered employers and employees must receive an FDA or WHO-approved or authorized vaccine.

As part of the employer vaccination requirement, employers must pay employees up to 4 hours of paid time off, including travel time, for the vaccination process.  This time must be paid at the employee’s regular rate of pay.  Employers must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose.

Weekly Testing

Covered employees who do not provide proof of full vaccination must provide proof of COVID-19 testing every seven days.  Any covered employee who does not provide proof of testing must be removed from the workplace until the employee provides a test result.

Tests used for purposes of compliance with this Rule must be cleared, approved, or authorized by the FDA.  Tests may not be self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

The Rule does not require employers to pay any costs associated with weekly testing.

Face Coverings

For covered employees who have not provided proof of full vaccination, covered employers must ensure employees wear a face covering indoors or in a vehicle with another person, except in the following situations:

• When an employee is alone in a room with floor to ceiling walls and a closed door;

• 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;

• When an employee is wearing a respirator or facemask; or

• Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance.

Employers are not required to cover the cost of face coverings.

Who Is Exempt From the Rule?

The following employers are exempt from the Rule:

• Federal contractors covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors Rule; or

• Healthcare services or healthcare support services that are covered by the Centers for Medicare and Medicaid Services Rule.

Additionally, covered employers, while otherwise following the Rule, do not have to implement the Rule in relation toward the following employees:

• Employees who do not report to a workplace where other individuals such as coworkers or customers are present (for example, employees who tele-work);

• Employees working from home; or

• Employees who work exclusively outdoors.

Finally, covered employers are not required to implement the Rule as to employees for whom:

• A vaccine is medically contraindicated;

• Medical necessity requires a delay in vaccination; or

• Employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

In this case, an employer must engage in the interactive process with an employee to determine if a reasonable accommodation is available.

How Does the Rule Interact With State Laws Regarding Vaccines?

The Rule specifically preempts any inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.

Recordkeeping

Proof of Vaccination Recordkeeping

The Rule requires employees to provide proof of vaccination status, which can take the form of: (1) immunization record; (2) a copy of the COVID-19 Vaccination Record Card; (3) a copy of medical records documenting vaccination; (4) any other official documentation that reflects the vaccine administered, the date of administration, and the name of the healthcare professional/site that administered the vaccine; or (5) a signed attestation from the employee which may be subject to criminal penalties.

Importantly, unlike the Executive Order applied to Federal Contracts, employers subject to this Rule must maintain record of vaccination for as long as this Rule is in effect.

Weekly Testing Recordkeeping

Employers must maintain records of test results for as long as this Rule is in effect.

Additional Notice Requirements

Covered employers must inform each employee, in a language and at a literacy level the employee understands, about:

• The requirements of this Rule as well as any employer policies and procedures established to implement the Rule;

• COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines,”;

• That the employer cannot discharge or otherwise discriminate or retaliate against an employee for reporting a work-related injury or illness; and

• That there are criminal penalties associated with knowingly supplying false statements or documentation.

Next Steps

It is likely that there will be one or more legal challenges to the Rule, and, the Rule provides the public 30 days to offer comments prior to the standards becoming finalized.  But, employers must immediately begin complying with the Rule now by drafting and implementing written mandatory vaccine/weekly testing policies.

Sheppard Mullin is preparing a comprehensive guidebook for employers to follow in navigating this new Rule that will be published in the upcoming days.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.