Earlier this month, employers heard that federal OSHA is planning to roll out a national vaccine-or-testing mandate for large employers (i.e., employers with a workforce of at least 100 employees). While details of that mandate have not been made public yet, employers would do well to plan ahead. Based on the available information that we have so far, we anticipate the following to be true of the mandate once it is rolled out:
- Anticipated compliance period?
We think it is likely that OSHA will give employers two to four weeks to comply with its vaccine-or-testing requirement once its regulations are issued. At this point, though, it is anyone’s guess as to when OSHA will issue its regulations.
- Will remote workers be counted towards the 100-employee threshold?
Likely yes. However, purely remote employees (i.e., those employees who never go on-site or conduct work in person) should be excluded from the regulation’s vaccine-or-testing mandate.
- Will part-time or temporary workers count towards the 100-employee threshold? How about visa holders?
Likely yes to both questions.
- Will OSHA take a position on a third booster COVID-19 shot?
It is difficult to say at present. If OSHA does, we anticipate that such a requirement would present logistical headaches for employers, who would have to keep track of which vaccines each employee took (i.e., Pfizer-BioNTech, J&J, or Moderna). That said, it bears mentioning that OSHA has seldomly concerned itself with an employer’s convenience or business operations.
- How long do we think these rules will last?
The rules, once in effect, will last for six months—after which OSHA may elect to make the rules permanently binding through formal rule-making procedures.
Employers should plan now for the implementation of OSHA’s mandate and use the above as guideposts in their planning.
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