Employment Attorney on COVID-19 vaccine or test mandate

ROCHESTER, N.Y. (WHEC) — 84 million workers will be required to get their COVID-19 vaccine by Jan. 4 or face regular testing. That’s according to the new federal mandate by the U.S. Department of Labor’s Occupations Safety and Health Administration (OSHA) rule.

News10NBC took a look at what employers must comply with as the deadline for unvaccinated workers is now set. This deadline is a lot different from the deadline health care workers faced. This mandate applies to all private sector companies with 100 or more employees.

We talked to Kim Harding, a Labor and Employment Attorney with Nixon Peabody. Harding told us under the new rule, employers with 100 or more workers will be required to implement mandatory vaccine policies. The rule does allow employers to provide unvaccinated workers an option for COVID-19 testing.

Unvaccinated employees must wear masks at all times unless they’re working alone in closed rooms. Harding says this specific rule goes into effect on Dec. 5. All others must be vaccinated or submit to mandatory testing starting on Jan. 4. We asked Harding if employers are able to provide any religious, or medical exemptions to their employees.

"Assuming the employer takes the approach of vaccination or testing it’s unlikely that an employee would be permitted to be exempted from any type of COVID-19 abatement type policy. So it would be vaccination or testing," Harding said.

She went on to say according to OSHA rules, employers are not required to pay for COVID-19 testing, and can pass those costs on to their employees.

Right now, all employees, including those working part-time, must get the shot or get tested, but, independent contractors do not, nor do teleworkers or people who work exclusively outdoors.

OSHA’s rule focuses specifically on ensuring people’s protection in the workplace.

If employees are spread out over various workplace locations, is the company still expected to comply with OSHA’s rule? That answer is yes.

As of early November, it’s estimated that about 31 million of the 84 million workers covered by the rule are unvaccinated.

It’s also estimated that 72% of them will get the vaccine because of the new requirements.

That means up to 90% of American adults could be vaccinated by mid-2022.