Airport Alert: New Vaccine Requirements for Employers with 100+ Employees and Federal Contractors
November 4, 2021
This morning, the White House announced new vaccine requirements for employers with 100 or more employees and delayed the federal contractor vaccine requirement from December 8, 2021, to January 4, 2022. Employees falling under these two requirements will need to have their final vaccination dose – either their second dose of Pfizer or Moderna or a single dose of Johnson & Johnson – by January 4, 2022. AAAE anticipates that these requirements will impact many airports nationwide, although legal challenges to the new rule are expected in the coming days.
The White House previously implemented an Executive Order requiring all federal employees to be fully vaccinated by November 22, 2021. The date for this mandate was not extended.
A summary of the Occupational Safety and Health Administration (OSHA) new vaccination requirements for employers with 100 or more employees is as follows:
• Companies must ensure each of their "covered employees" have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4.
• Employers must provide paid time for employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
• After January 4, 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.
• The company is not required to provide or pay for the tests for workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise in some cases.
• Employers 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.
• All unvaccinated workers must wear a face mask in the workplace. Employers are not required to purchase face masks for employees who are not vaccinated.
• Enforcement of these rules will largely fall on the companies. Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials available here. While the testing requirement for unvaccinated workers will begin after January 4, employers must comply with all other OSHA requirements – such as providing paid time for employees to get vaccinated and masking for unvaccinated workers – by December 5.
• Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and ten times that for willful or repeated violations (up to $136,532). OSHA inspectors will respond to employee complaints and add COVID-related inspections to their on-site inspections.
OSHA stated that the new rule preempts any state or local requirements that ban or limit an employer from requiring vaccination, face-covering, or testing.
In addition to private employers with more than 100 or more employees, the new rule will apply to state- and local-government employers with 100 or more employees if such employers are in states with OSHA-approved state plans. Twenty-six states, Puerto Rico and the U.S. Virgin Islands have OSHA-approved state plans that govern workplace safety for state and local government employees. They will need to enact rules of their own that are at least as effective as the federal rule.
The OSHA requirements will be published in the Federal Register tomorrow but the unpublished emergency temporary standard (ETS) is already available for review. OSHA is also inviting public comment for a 30-day period. Additional information on the ETS can be found in a White House factsheet, in an OSHA webinar on the COVID-19 vaccination and testing emergency temporary standards, and on the OSHA website.
In addition to these two requirements, the White House also issued another rule that requires health care workers at facilities participating in Medicare and Medicaid to be vaccinated by January 4, 2022, with no option for weekly testing in lieu of vaccination.
