The Federal Vaccine Mandate Is Here!

November 4, 2021

The unpublished version of the federal vaccine mandate for private employers was released today. (Federal workers and contractors were covered under prior Executive Orders.) The ETS (Emergency Temporary Standard) will be published and become effective tomorrow, Nov. 5.  Based on the unpublished version, the rule will contain a 60 day comment period to determine whether the ETS will become a final rule.

This mandate covers all private employers with 100 or more employees.  Despite its common name, the ETS requires vaccination OR “regular COVID-19 testing and face covering at work in lieu of vaccination.”  Employers may impose mandatory vaccination without the option of regular testing and masking, but that is more than is required under the ETS.

Employees who work 100% remotely or completely away from others (i.e., removed from co-workers, customers, clients, vendors) are not covered by the mandate.  Employees who work “exclusively” outside aren’t covered, but the ETS narrowly defines “exclusively.” Employees who spend most of their time outside but, for example, travel together to and from the job site don’t work “exclusively” outside.  Construction workers working in a partially constructed structure don’t work “exclusively” outside.  Although “de minimis” indoor time will not remove an employee from the definition of “exclusively” outside, OSHA will aggregate such time to determine whether the employee works “exclusively” outside.

The ETS does not change the exemptions for health or religious reasons and the requirement that employers provide reasonable accommodation for the same unless doing so would create undue hardship.

Employers will be required to provide paid time off for employees to receive vaccinations and to recover from side effects.  Employers, however, aren’t required to pay for weekly tests for employees who choose not to be vaccinated.  The compliance deadline is 30 days after publication, which will be December 5.

At this time, public employers in Pennsylvania, including local governments, municipalities, and school districts, will not need to comply with the ETS.  Note, however, the Pennsylvania General Assembly is currently considering two bills that would extend the mandate to the state’s public employers.

It’s likely that there will be challenges to the mandate – and it’s likely that there will be questions about the requirements, exemptions, and other portions of the mandate as employers work to comply.  We’re here to help.  Please contact Jean Novak, at jnovak@smgglaw.com, or Matt Morella, at mmorella@smgglaw.com, if you have questions.