As the year winds down, COVID-19 legal changes are occurring at breakneck speed, creating risk and confusion for many employers.  Here are some key legal issues that employers should consider going into 2022.

  • The federal government large employer vaccine-or-test mandate is still the subject of ongoing litigation, but will be enforced by OSHA starting on January 10, 2022

Where we’ve been:

As we previously reported, OSHA issued an Emergency Temporary Standard (“OSHA ETS”), detailing President Biden’s COVID-19 vaccine-or-testing mandate for most large employers (with 100 or more employees).

As a reminder, under the OSHA ETS, covered large employers must either:

(A) require their entire workforce to be fully vaccinated against COVID-19; or

(B) allow employees to choose whether to show proof of vaccination or get tested for COVID-19 weekly and submit their test results. Employees who are not vaccinated must also wear face coverings in certain instances while working.

The ETS also requires large employers to implement written policies and keep certain records, among other obligations. The ETS is designed to be a minimum safety standard at the federal level for most large employers, although there are other federal requirements for certain industries and, as discussed below, state or local laws may be more stringent or conflict. Employees who work remotely, alone, or exclusively outside may have different requirements.

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