Date: November 5, 2021Attorney: Brent R. Pohlman

On Thursday November 4, 2021 the United States Department of Labor, Occupational Safety and Health Administration (“OSHA”) issued the long-awaited temporary rule addressing mandatory COVID-19 vaccination and testing in the workplace.

Who Is The Rule Applicable To?

This temporary rule applies to all entities in the United States that employ 100 or more full or part time employees. Additionally, this rule will be applicable to public sector employers that satisfy the covered employee criteria in those states that have an approved public OSHA programs.

Vaccination & Testing Requirements:

The temporary rule requires that employers develop, implement, distribute, and enforce a mandatory COVID-19 vaccination policy, unless the employer adopts mandatory testing for unvaccinated employees. Unvaccinated in-person employees are required to wear face coverings while working in-doors or in a vehicle with another person. Employers must still accommodate those employees with medical conditions that prevent administration of the vaccine, and those who possess sincerely held religious beliefs that preclude vaccine administration. Unvaccinated in-person employees must be tested weekly. Employees that work from home or work entirely outdoors are exempt from the vaccination and testing requirement. Any unvaccinated employee who is returning to in-person work must be tested within seven (7) days of their return.

Covered employers are required to provide full-time and part-time employees with up to 4 hours paid time off for vaccine administration, and provide employees paid time off, if needed, to recover from side effects of the vaccine.

Record Keeping Requirements:

  • Employers are required to determine vaccination status of all employees.
  • Employers are required to obtain acceptable proof of vaccination status.
  • Employers are required to maintain records documenting employee vaccination status.
  • Employers are required to maintain a vaccination status roster that is accurate and up to date at all times.

Positive Test Protocol:

Employers must require that all employees provide prompt notice of positive COVID-19 test results. Employers must then remove the employee from in-person work until the employee produces a negative NAAT test.  

An employer does not have an obligation to pay for testing as per the OSHA temporary rule, however testing may be obligated under certain state laws, collective bargaining agreements, insurance contracts, or if the employee is unable to be vaccinated as a result of a medical condition. Employers are not required to pay for facial coverings for unvaccinated employees.

The vaccination and testing mandates will be effective January 4, 2022.  There are numerous other components of this temporary rule that what has been discussed above. As such, our firm recommends that covered employers have a compliant policy in place prior to the end of 2021. We anticipate there will be immediate legal challenges by numerous business organizations and States. However, we strongly recommend that covered employers begin the process of developing a plan to comply with the temporary rule. The Corporate and Labor & Employment Law Departments at Mandelbaum Barrett PC are ready to assist our clients in developing, implementing, and distributing a compliant policy and record keeping practices. If you have any questions, please contact Brent Pohlman at or (973) 243-7997.