Nemeth Law attorney looks at responsibility of employers in new OSHA ruling on COVID-19 vaccine mandate

November 4, 2021
Detroit, Michigan

Deborah Brouwer, co-managing partner of Detroit-based management-side labor and employment law firm Nemeth Law, P.C., says private employers have some work to do as they make plans to comply with the federal COVID-19 vaccine mandate for those with 100+ employees. The mandate requires that employees working for covered employers be fully vaccinated by January 4, 2022, and also allows employers to require that employees who choose not to be vaccinated to pay their own costs for weekly COVID testing.

As announced by OSHA in its Emergency Temporary Standard (ETS), covered employers must provide up to 4 hours paid time off for employees to get vaccines, and reasonable paid time off to recover from any side effects of the vaccine that prevent the employee from working. Employees who are not vaccinated must be masked at work, and must provide, at least weekly, a negative COVID-19 test. These rules do not apply to employees who work from home, exclusively outdoors or who work at a site where no other workers or customers are present.  Although employers have until January 4, 2022 to get their workforces vaccinated, the mask requirement must be implemented by December 5, 2021.

Religious and disability exemptions remain applicable, in appropriate cases, and may extend to testing or mask requirements also, in which case the employer must offer a reasonable accommodation, unless to do so would present an undue hardship.

“Even with the January deadline for full compliance, employers should begin preparing now,” Brouwer said. “The ETS requires that employers prepare written policies that address the ETS’s requirements, and also requires that employers maintain records tracking the vaccine status of employees. For these reasons, it might make sense for employers to designate a compliance officer to track the many details involved with the mandate and its recordkeeping requirements.”

It should be noted that numerous lawsuits challenging the ETS were promised even before the details of the mandate were known; those suits probably will be filed in the next day or so, and likely will seek a stay of the emergency rule.

About Nemeth Law, P.C.

Nemeth Law specializes in employment litigation, traditional labor law, workplace investigations, and management consultation and training for private and public sector employers. The firm also provides arbitration and mediation services. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.