On November 4, 2021, The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released its highly anticipated Emergency Temporary Standard (ETS) for COVID-19 Vaccination and Testing, which requires that employees be fully vaccinated against COVID-19 or submit to weekly testing by January 4, 2022. OSHA anticipates the ETS will remain in effect for up to six months. Here are some key points that you need to know:

• The OSHA ETS applies to employers with 100 or more employees enterprise wide and requires covered employers to determine the vaccination status of each employee by obtaining proof of vaccination status and maintaining an appropriate record of such.

• Covered employers have until December 5, 2021 to develop and implement a mandatory COVID-19 vaccination policy and distribute required written materials, including the CDC document “Key Things to Know About COVID-19 Vaccines,” protections against retaliation and discrimination and penalties for knowingly providing false statements or other information.

• Unvaccinated employees must submit to weekly COVID-19 testing at least every seven days, beginning January 4, 2021, unless the employee works remotely or exclusively in outdoor settings. Employers are not required to pay for COVID-19 testing, but employers should consult with legal counsel to determine whether any other laws or regulations may be implicated in passing the cost of weekly testing onto employees.

• Employees must be provided with up to four hours of paid time off to receive the COVID-19 vaccine.

• Unvaccinated employees must wear an appropriate facial covering in the workplace beginning December 5, 2021.

• Employers who have already implemented a mandatory COVID-19 vaccination policy should review their existing policy and make any necessary changes to comply with the OSHA ETS.

Challenges to Vaccine Mandate for Federal Contractors and Subcontractors

Today Ohio Attorney General, Dave Yost, announced that Ohio has filed a lawsuit challenging the federal vaccination mandate for federal contractors, subcontractors and their employees. That lawsuit has been joined by Kentucky, Tennessee, and two Ohio county sheriffs, and challenges the constitutionality order and alleges a negative effect on public safety that would be caused by the mandate. The case was filed in the U.S. District Court for the Eastern District of Kentucky, which is expected to entertain motions for temporarily and preliminary injunctive relief that would prevent the rule from taking effect. We will keep you updated as more information becomes available.