Update: On January 13, 2022, the U.S. Supreme Court issued a decision blocking this rule from taking effect. While employers can continue to impose their own vaccination mandates, they're not required to do so.
Under a new rule issued by the federal government, all employers with 100 or more employees must require their workers to be fully vaccinated against COVID-19 by January 4, 2022, or produce a weekly negative test result before coming to work.
The rule is part of a plan announced by the Biden administration in September to curb the spread of the pandemic. The requirements come as the highly contagious Delta variant continues to ravage the unvaccinated, with many American employers already implementing vaccination mandates.
Here's what you need to know about how the new rule will affect you.
The rule applies to all employers with 100 or more employees. The 100-employee threshold is counted on a company-wide basis, rather than being tallied location by location. It's estimated that the rule will impact 84 million workers, or more than two-thirds of the country's workforce. The rule covers employers in every industry, from retail to meatpacking.
Certain high-risk healthcare settings are covered by a separate rule, which requires workers to be vaccinated by the January 4 deadline but does not allow weekly testing in lieu of vaccination.
Mandatory vaccination or testing policy: All employers with 100 or more employees must develop, implement and enforce a written policy either:
Paid time off for vaccination: Businesses must give workers up to four hours paid time off (including travel time) to get vaccinated. In addition, employers must provide reasonable time and paid sick leave to recover from any side effects for each vaccine dose.
Indoor mask requirement: Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or inside a vehicle with another person for work purposes.
Positive COVID-19 test result: Employees who receive a positive COVID-19 test result or are diagnosed with COVID-19 by a licensed health care provider must immediately notify their employer, who must immediately remove them from the workplace.
Cost of testing: Employers need not provide or pay for COVID-19 testing for employees, unless collective bargaining agreements or other circumstances dictate otherwise.
Checking vaccination status and keeping records: In addition to determining each employee's vaccination status, employers must preserve proof of vaccination for each employee who is vaccinated, and a roster of each employee's vaccination status. Employers must produce these records to OSHA upon request.
The requirements that unvaccinated employees wear face masks and be entitled to paid time off to get vaccinated took effect on December 5, 2021. By January 4, 2022, all employees subject to the rule must be fully vaccinated or get tested weekly.
The rule does not apply to remote workers or other workers who don't come into contact with the public in an indoor setting. The following types of employees need not comply with their employer's vaccination mandate:
Remote workers who go into the workplace periodically must either be vaccinated or be tested for COVID-19 within seven days of returning to work.
Employees with disabilities or sincerely held religious beliefs that prevent them from getting vaccinated might be entitled to certain accommodations under the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964.
For employers seeking more information about what to do if an employee requests an exemption from your COVID-19 vaccination policy, see COVID-19 Vaccination and the Workplace: FAQs for Employers.
For employees seeking more information about disability and religious exemptions to vaccine mandates, see Can My Employer Require Me to Get a COVID-19 Vaccination?
The rule was prepared by the Occupational Safety and Health Administration (OSHA), a federal agency housed in the Department of Labor. OSHA's purpose is to ensure safe and healthy working conditions through the Occupational Safety and Health Act, a law that requires employers to maintain workplaces free from hazards likely to cause death or serious injury. OSHA has determined that unvaccinated employees face grave danger from exposure to COVID-19 in the workplace.
Because there are only a couple of thousand state and federal OSHA inspectors nationwide, enforcement of the rule will largely fall to employers. Rather than attempt to inspect every workplace, OSHA inspectors will likely respond to employee complaints and check compliance with COVID-19 requirements when they are already on-site.
Starting January 10, 2022, employers who fail to implement the OSHA rule will be subject to fines of up to $13,653 for each facility inspected by OSHA that has not implemented a mandatory vaccination policy or otherwise complied with the rule.
Private-sector employers generally can require their employees to get a COVID-19 vaccination as a condition of employment, as long as employers consider requests for exemption on disability or religious grounds. Many states also have vaccine mandates; for example, state laws may require health care workers to be vaccinated against COVID-19 as well as diseases like the flu. And the federal government has the legal authority to issue health and safety protections for workers.
Vaccination mandates at the federal level, however, have never been tested. Due to the fierce politicization of vaccines in the U.S., the OSHA rule is already facing legal challenges, and is certain to face more. Courts considering such challenges will likely weigh questions of personal choice against the public health risks of a deadly pandemic. Courts will probably find it significant that the weekly testing option gives employees the ability to opt out of mandatory vaccination.