In Short: The Occupational Safety and Health Administration (OSHA) is requiring employers with more than 100 employees to ensure that their employees are fully vaccinated against COVID-19 by January 4, 2022. If an employee is not vaccinated, they must wear face coverings and test negative for COVID-19 at least once per week.
Medical Workers: The Centers for Medicare and Medicaid Services (CMS) issued a separate rule requiring all eligible staff at health care facilities that participate in the Medicare and Medicaid programs to be fully vaccinated by January 4, 2022. There is no option for face coverings and negative COVID-19 tests for these employees.
On November 4, 2021, the Biden Administration, through the Occupational Safety and Health Administration and the Centers for Medicare and Medicaid Services issued rules in the Federal Register mandating that employers with more than 100 employees to require their employees to be fully vaccinated against COVID-19 or wear face coverings and test negative weekly before January 4, 2022. Staff at medical facilities participating the Medicare and Medicaid programs do not have the option to wear masks and test negative weekly. Employers are not required to pay for employees’ testing. However, employers must provide paid time off for employees to recover from any side effects of receiving the vaccine.
Employees claiming medical or religious exemptions from the mandate must still comply with the masking and testing rules. Employers must keep records of each employee’s vaccination status and any negative weekly test for each non-vaccinated employee. Employees who have tested positive for COVID-19 by a licensed healthcare provider must not be tested for 90 days following the positive test due to the high likelihood of false positive results in these cases.
Employees, regardless of vaccination status, who test positive for COVID-19 must be removed from the worksite until the employee: i) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) (also called a PCR test); ii) meets the return criteria in the CDC’s isolation guidance; or iii) receives a recommendation to return to work from a licensed healthcare provider.
These rules specifically preempt any state or local rules or laws addressing COVID-19. Employers who violate these rules can face fines of up to $13,653 per employee and up to ten times that for willful violations. OSHA will enforce this rule primarily through employee complaints.
Lawsuits have already been filed to challenge the legality of these new rules. We will monitor the lawsuits, as well as any modifications to the rules, and provide updates as appropriate.
Premier Litigators can help navigate these new rules. Contact us at (877) 858-6868.