New Vaccination Requirement for Employers With 100 or More Employees

New OSHA and CMS rules mean two thirds of all workers are now covered by vaccination rules.

Today, the Biden Administration announced the details of two policies that aim to get millions more Americans vaccinated against Covid-19.

First, the Department of Labor’s Occupational Safety and Health Administration (OSHA) is announcing the details of a requirement for employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for Covid-19 on at least a weekly basis.

This rule will cover 84 million employees.

Per OSHA’s Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS), after January 4, 2022, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive Covid-19 test or is diagnosed with Covid-19 by a licensed health care provider.

The ETS lays out the wide variety of tests that comply with the standard. Generally, employers will not be required to provide or pay for tests, unless required by other laws or collective bargaining agreements.

Unvaccinated employees will also be required to wear a face mask in the workplace.

Covered employers are required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.

While the testing requirement for unvaccinated workers will begin after Jan. 4, 2022, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on Dec. 5, 2021.

The second policy, from the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services, pertains to the requirement that health care workers at facilities participating in Medicare and Medicaid be fully vaccinated. It will apply to more than 17 million workers at approximately 76,000 health care facilities, including hospitals and long-term care facilities.

The Administration has previously implemented policies requiring millions of federal employees and federal contractors to be fully vaccinated.

Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released Covid-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS.

Across all three requirements, workers will need to have the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – no later than Jan. 4, 2022.

“This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries,” reads the recently released fact sheet on the new policies. “And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.”

OSHA is also clarifying that it will not apply its new rule to workplaces covered by either the CMS rule or the federal contractor vaccination requirement. And, both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.