The DOL has released a 490 page emergency temporary standard (ETS) mandating that employers with 100 or more employees (across all locations) adopt a mandatory COVID vaccine policy. As an alternative to mandating vaccines, employers may adopt a policy requiring employees to choose to be vaccinated, or undergo 'regular' (generally once per week) COVID testing while wearing a face covering at the workplace. 

Employers are NOT required to pay for the actual COVID testing under this rule, however the FLSA generally requires employees be paid for time away from work needed to complete this testing. Additionally, the rule will generally not apply to employees working in a 100% remote capacity, who do not enter a workspace.

The ETS also requires employers with 100 or more employees to do the following:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status.

• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.

• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).

• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Employers have until December 5th, 2021 to comply with the ETS. A link to the text of the DOL new release is here, and a link to the final rule in the Federal Registrar is here.

If you have not already established a company vaccine policy, we recommend working to have one in place ahead of the December 5th deadline. It's also a good idea to consult your counsel with direct questions regarding your options as an employer.