Vaccine Mandate UPDATE

November 5, 2021

As expected, the Emergency Temporary Standard (ETS) for mandatory vaccinations was published today.  The ETS is available here.

Contrary to news reports that the compliance date is January 4, the first compliance date is December 5.  The final compliance date is January 4.  From the ETS:

The effective date for this ETS… is the date of publication in the Federal Register [November 5, 2021]. The compliance date for all provisions in the ETS is 30 days after the effective date [December 5, 2021], except for (COVID-19 testing for employees who are not fully vaccinated), which requires compliance within 60 days of the effective date [January 4, 2022].

The confusion regarding compliance is understandable.  The 60 day compliance period is intended to allow time for businesses to develop policies and procedures and to allow employees to be vaccinated before employee testing becomes mandatory.  According to OSHA, employees receiving the Johnson & Johnson vaccine can be vaccinated anytime through January 4, 2022. But employees receiving the other vaccines must begin the vaccination process earlier.  For employees receiving the Pfizer-BioNTech vaccination, the first shot can be received “up to 39 days from” November 5, i.e., December 14. Employees receiving the Moderna vaccine must begin the process “up to 32 days from” November 5, i.e., December 7.  As of January 4, 2022, unvaccinated employees will be subject to weekly testing, and employers with unvaccinated employees will be subject to reporting requirements.

News reports this morning indicate that more than 20 states intend to take legal action challenging the mandate.  In the meantime, businesses covered by the mandate should begin planning to comply in case the legal challenges fail.  Covered businesses should develop:

  1. A vaccination policy
  2. An employee vaccination status tracking process
  3. An employee vaccination support policy
  4. A face coverings policy (for unvaccinated employees)

This is an evolving situation.  We’re here to help.  Please contact Jean Novak, at jnovak@smgglaw.com, or Matt Morella, at mmorella@smgglaw.com, if you have questions.