November 12, 2021

Deadlines for new OSHA vaccination rules looming—maybe

Mandate for employers with 100 or more employees being challenged in court, but be prepared, just in case.
employee getting vaccinated

The policy requires employers to ensure each of their employees are fully vaccinated against COVID-19, or are tested weekly.


Since it was published on Nov. 5, 2021, the ETS has faced more than 30 legal challenges in a dozen different federal circuit courts of appeals. On Nov. 12, the U.S. Circuit Court of Appeals for the Fifth Circuit handed down a permanent stay, and as a result, OSHA acknowledged that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

All of the previous cases are being consolidated into one that will be heard by the Sixth Circuit, which is comprised of a majority of Republican-appointed judges who have expressed misgivings over OSHA’s claimed authority to adopt the far-reaching policy. A ruling by the Sixth Circuit is expected by the end of the year, however that ruling will likely get appealed resulting in the case advancing to the Supreme Court.

In the face of ongoing litigation and lingering uncertainty over whether the ETS will survive, the Association advises restaurant owners and operators to continue planning and developing compliant workplace policies so they are prepared should the permanent stay be lifted and the ETS survives.

As part of President Biden’s “Path Out of the Pandemic,” the White House announced details of a new vaccination mandate from the Department of Labor’s Occupational Safety and Health Administration (OSHA) for companies with more than 100 employees. Called an emergency temporary standard (ETS), the policy requires that employers ensure each of their employees are fully vaccinated against COVID-19 or are tested weekly.

In addition, employers that fall under the policy must provide paid-time for employees to get vaccinated, and sick time, if needed, for them to recover from side effects. Unvaccinated employees of covered companies also must wear face masks while at work.

Many of the details of what you need to know about this new policy and the rules you’ll have to follow are discussed in an Association webinar that was presented on Nov. 8. Speakers included the Association’s Sean Kennedy, executive vice president, Public Affairs, Shannon Meade, vice president, Public Policy and Legal Advocacy, and James Paretti and Bradford Hammock, shareholders at Littler Mendelson PC.

Deadlines to comply with the new policy are coming up fast, so companies need to plan how they’ll implement the policy in their organizations. While testing for unvaccinated workers doesn’t start until Jan. 4th under the policy, companies must comply with all other rules, including reporting and recordkeeping, starting Dec. 5th. 

Who’s covered

OSHA’s policy covers employers with 100 or more employees as of Nov. 5, 2021. If your company grows to more than that after Nov. 5, it will become covered. If you lose employees after that date, you’ll still be covered under the rules. Temporary and seasonal employees count toward your total, and the total is by company, not by location. 

If you have three restaurants, for example, with a total of 80 full-time employees and 20 additional employees in the summer, you fall under the rules even though each of your restaurants employ fewer than 35 people. Part-time employees don’t count toward the total, but employees who work from home do, though they don’t have to be vaccinated or tested.

Franchisees are considered separate businesses. However, a franchisee with multiple locations that employs 100 or more people will fall under the rules.

Vaccination rules

As of Jan. 4, 2022, everyone who works in a covered restaurant organization must be fully vaccinated unless they have a medical or religious exemption. Anyone who is not vaccinated for any reason must submit to weekly testing and wear a mask at work at all times. To be fully vaccinated, a person must have waited two weeks after receiving either the two-shot mRNA COVID-19 vaccines from Pfizer and Moderna or a one-shot Johnson & Johnson vaccine.

Proof of vaccination includes:

  • A copy of the CDC COVID-19 Vaccination Record Card
  • Immunization record from a healthcare provider or pharmacy
  • Copy of immunization record from public health, tribal or state health information systems
  • Copy of medical records documenting the vaccination
  • Copy of any other official record of vaccination
  • A previous COVID-19 infection does not count as immunization.

Once an employee provides documentation, they don’t need to re-verify their status.

Paid time off

You must provide employees with up to four hours of paid time off for each dose of the vaccine, not including boosters, if they receive it during working hours. This is in addition to whatever paid leave or time off an employee might have. State and local laws may impose additional requirements.

You must also provide employees with reasonable paid sick time to recover from side effects. OSHA’s policy has more details that apply.

Testing option

You must test unvaccinated employees for COVID-19 weekly, including those who are exempt from vaccination for medical or religious reasons, and anyone who works remotely or apart from co-workers and customers. You may test vaccinated employees if you want. Any unvaccinated employee who doesn’t take a required test may not be allowed to work in the restaurant; masks and social distancing aren't enough. At-home COVID-19 tests aren’t allowed unless the employees arrange to have them proctored.

You may not have to pay for testing unless: 

  • tests are offered as a reasonable accommodation to those with disabilities or religious beliefs that prevent them from being vaccinated 
  • state law requires it; or 
  • your company has agreed to it as a part of collective bargaining

Employee notification

Covered employers must let employees know:

  • about the ETS and what it entails
  • about the vaccines’ efficacy, safety and benefits
  • that your company can’t discriminate for reporting work-related injuries
  • that there are criminal penalties for falsifying records
  • the CDC’s key things to know about COVID-19

Be prepared

While there are several legal challenges to the ETS already in court, it’s smart to get ready to comply with the new rules if they take effect. If you already have a vaccination policy in effect, review it. If not, consider putting one in place. And plan ahead for how you’ll handle weekly testing if necessary.

For more information, listen to the webinar, or read the OSHA ETS FAQs.