Late last week, the Department of Labor’s Occupational Health and Safety Administration (OSHA) released long-awaited guidance on the Biden Administration’s vaccine mandate for employers with 100 or more employees. Not long after, the mandate was stayed by a panel of judges hearing a request for a permanent injunction to stop/cancel the initiative. With the holidays quickly approaching, time to “make sense” of these new details is limited. I recommend that employers keep the following in mind:

1. The mandate is not “canceled” and currently must be completed by January 4, 2022.

   The Fifth Circuit’s decision to “stay” the vaccine mandate does not cancel it – and therefore, employers should continue to move forward with preparing to comply with the newly released details promulgated by OSHA. This is especially important given that OSHA guidance indicates that employers must be in compliance with the mandate by January 4, 2022. This means that if your organization currently does not have a COVID-19 vaccination policy, you will need to create, review, and disseminate with enough time for employees to become vaccinated (or submit to weekly testing – see below).

2. Employers can comply by keeping track of weekly testing (i.e., there is a testing option) and the employers (from a federal perspective) are not required to pay for time spent testing or the actual tests.

   I previously wrote about the federal contractor mandate that eliminated the “testing option” (except in cases of religious or disability accommodations) consistent with Executive Order 14042. The most recent guidance for private employers states that employers can allow an option to test weekly – however, employers must keep records on the weekly testing. Employers do not need to pay for the test or time taken to test unless required by state law. I recommend that employers review state law to ensure that their policies are compliant – while maintaining testing information in a confidential file (i.e., with the employees’ medical information rather than their “regular” personnel file).

3. Understanding whether your organization is affected is key.

   The federal government noted that the entirety of an organization’s workforce must comply if total employees reach 100 or more. Employees that work completely remotely do not need to be vaccinated or tested weekly – however, must still be counted for purposes of understanding the organization’s overall duty to comply.

OSHA’s Frequently Asked Questions (FAQ) page provides helpful feedback for navigating these new standards. I recommend reviewing as soon as possible in order to implement the necessary changes.

Feel free to reach out to me to discuss.