The federal vaccine mandate made news once again as the U.S. Court of Appeals for the Sixth Circuit removed the stay that had temporarily placed the law on hold. In their December 17th ruling, the court found that the Occupational Safety and Health Administration (OSHA) can move forward to implement and enforce the COVID-19 Vaccination and Testing Emergency Testing Standards (ETS).
You can read the court’s complete ruling here .
Vaccine Enforcement Deadlines
Unless additional court actions intervene in the matter, the vaccine and testing mandate is set to fully go into effect on January 10th . The mandate includes fines for non-compliance, but the deadlines for enforcement have been adjusted to the following:
January 10: The full law is in effect as of this date, including requirements for indoor masking, vaccine verification, testing and written policies and procedures. No enforcement will be taken before this date.
February 9: While full compliance is on 1/10, OSHA will not enforce the testing part of the mandate before this day, as long the company is taking reasonable, good-faith measures to come into compliance.
OSHA further states that they will be “exercising enforcement discretion with respect to the compliance dates of the ETS” due to the uncertainty caused by the legal battle over the law.
Vaccine mandate FAQs
Between the many provisions included in the law and the back and forth in the courts, there is a lot of confusion regarding the mandate. We’ve compiled some common questions answers about the law and curated some additional resources for companies trying to determine how the law applies to them.
What does the federal vaccine mandate include?
You can read the complete law here, but the main provisions of the mandate come down to the following areas:
- Required recording keeping and reporting for vaccine and testing status
- Tracking and storing COVID-19 vaccine and test data
- Providing relevant data available to those with written authorized consent
- Tracking and providing the aggregate number of fully vaccinated employees and total number of employees, to any employee or employee representative that requests the information.
Who is required to comply with the vaccine mandate?
Companies with 100 employees or more fall under the vaccine mandate. The 100-employee mark includes all workers, part time and full time, and is calculated company wide. For example, if you have two locations with 50 employees at each location, you have 100 employees and must comply with the mandate.
How do franchises, independent contractors, and seasonal workers count?
If you are a franchisee that is independently owned and operated, you only have to count your own employees, not that of the corporation behind the franchise or other locations. Independent contractors are not included in employee count. Temporary and seasonal workers are included in the count if they are directly hired by a company and not obtained through a staffing agency.
Do companies have to have a written vaccine policy?
Yes, under section 1910.501(d)(1) of the law, employers are required to establish, implement and enforce a written mandatory vaccination policy. It must be readily available through whatever normal methods of communication a company uses to distribute information to their workforce.
OSHA provides a template to make this easier, which can be downloaded here.
What documentation must companies obtain to verify vaccination status?
OSHA offers the following list of acceptable forms of proof for a worker’s vaccination status:
- Record of immunization from a health care provider or pharmacy.
- Copy of the U.S. COVID-19 Vaccination Record Card;
- Copy of medical records documenting the vaccination status.
- Copy of immunization records from a public health, state, or tribal immunization information system
- Copy of any other official documentation that contains the following information: type of vaccine administered, administration date(s), name of clinic or health care professional that administered the vaccine.
How often do unvaccinated workers need a COVID-19 test?
They are required to take and provide results weekly to be on the worksite. If the worker is not in the office regularly, they need a negative test result within 7 days of coming to the workplace. So if some workers are hybrid, or only visit the office bi-weekly or monthly, they need to provide negative test results within 7 days of their visit.
Do fully remote workers need to get tested?
No, workers that are fully remote and never enter a workplace where other coworkers or customers visit do not have to get weekly tests.
What type of COVID-19 test satisfies the law?
Acceptable tests are those that are approved by the FDA to detect SARS-CoV-2 virus (COVID-19) and administered as according to instructions. This includes tests processed in a lab, including self-collected at-home tests and on-site tests. Tests that are self-administered and self-reported do not satisfy the law. For these types of tests to count, they must be observed by the employer or an authorized telehealth proctor.
Does the law require testing OR mask, or both?
Unvaccinated workers are required to both get weekly testing and wear a mask on the premises.
Do companies have to maintain copies of COVID-19 test results?
Yes, companies are required to keep records on each test result for every employee that is required to submit them. It is important to note that these are medical records and have to be maintained in accordance with federal laws regarding retainment and privacy rights. At the moment, OSHA states that these records must follow 29 CFR 1910.1020 and must be maintained while ETS is in effect. It is unclear when ETS will stop being in effect, or what guidance may occur at the point. For these reasons, it is important to maintain records and watch closely for further guidance regarding retention.
Can unvaccinated workers come to a workplace with no test if they wear a mask?
No, they must provide the result of a negative COVID-19 test every week in addition to wearing a mask
What happens now
The battle over the mandate is not over and appeals against the ruling have already been filed, including to the Supreme Court and emergency appeals within the ruling court’s jurisdiction. At the moment, however, the vaccine mandate is in place. For this reason, it is wise to work to become compliant before the updated deadlines and watch for updates and guidance on the matter.
The material presented here is educational in nature and is not intended to be, nor should be relied upon, as legal or financial advice. Please consult with an attorney or financial professional for advice.