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  • Leslie A. Farber

Are You Prepared for OSHA’s New Vaccine Mandate?



The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard to protect unvaccinated employees of large employers from the risk of contracting COVID-19 by strongly encouraging vaccination.


The measure was announced by President Biden in September 2021, and companies of 100 or more employees have until January 4, 2022, to ensure that all of their workers are either fully vaccinated or submit to weekly testing and mandatory mask-wearing.

It is estimated that anywhere from 84 million to 100 million workers across the country will be affected by the sweeping new plan, which considers the coronavirus an occupational hazard in the workplace. While the mandate raises a lot of questions for both employers and employees, it comes at a time when data indicates a majority of private companies already plan to put COVID-19 vaccine mandates in place for their workforce, independent of federal regulations.


Who is impacted by the new rule and what businesses and organizations does it apply to?


Here are some key requirements that employers and employees need to know:

· Companies of 100 or more employees must require their workers to be fully vaccinated or submit to weekly coronavirus testing and masking while in the workplace. Employees working part time and remotely count toward the threshold; independent contractors do not; and employees at a company's corporate headquarters and employees at franchise sites would be counted separately. OSHA is considering whether to extend the rule to employers with fewer than 100 workers.

· OSHA’s rule applies to the private sector, including nonprofit organizations. If a nonprofit has a large volunteer base, those volunteers are not considered employees and therefore are not covered by OSHA’s requirements. However, companies have the option to decide to apply their policies more widely, including to volunteers.

· Teleworkers, employees who work exclusively outdoors and those who report to workplaces without other people will not be required to be vaccinated or submit to weekly testing. Employees who follow a hybrid schedule, splitting their time between their home and office, are required to follow the mandate.

· Employees working at independently owned and operated franchises of a larger, nationwide chain would not fall under the mandate if the number of employees at the franchise site is less than 100.

· Private colleges and universities must comply with OSHA’s rule. Public institutions could be covered in states with their own workplace safety agencies.

· Health care providers are covered by a different OSHA rule, and government contractors and Medicare and Medicaid providers have separate mandates.

· Employers are required to give two kinds of exemptions to the vaccine mandates: medical and religious. Exemptions for people with certain medical conditions are protected under the Americans With Disabilities Act; exemptions for people with sincerely held religious beliefs are protected under Title VII of the Civil Rights Act. Employees who are granted exemptions must still wear masks and be tested regularly.

· Companies that fail to comply with the rule may be subject to fines of up to $13,653 per serious violation.


OSHA anticipates that the emergency temporary standard will be in effect for six months. The agency is continuing to monitor vaccine and infection rates, however, and could decide to extend the rule or make more permanent. If you are an employer or an employee with questions or concerns about COVID-19 vaccine mandates, please contact us at 973-707-3322 or LFarber@LFarberLaw.com.


The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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