September 30, 2021

New Vaccine Requirements: Your Questions Answered

Stephen Massey
Managing Director, Health Action Alliance

OSHA’s longest-serving leader answers 13 questions from the business community.

Companies of 100 or more workers have many questions as they prepare for the new Occupational Safety and Health Administration (OSHA) rules requiring them to ensure workers are vaccinated or tested weekly for COVID-19. To help them navigate this next phase — and benefit from lessons already learned by top companies — the Health Action Alliance assembled a team of experts during a National Town Hall last week.

We’ve condensed the remarks of three of our guests into key takeaways:

David Michaels, former Assistant Secretary of Labor for OSHA (2009-2017)

Jeff Miller, Executive Vice President, National Football League

Malcom Glenn, Senior Advisor on Equity & Access, Health Action Alliance


During our Town Hall, employers also had an opportunity to submit written questions to Dr. Michaels. He’s generously offered his analysis and perspectives below.

  1. When do you anticipate OSHA’s emergency rule will be published?
    Ballpark estimate: a few weeks or a month. And when it comes out, OSHA will probably give employers some lead time, maybe 30 days, before enforcement starts.
  2. Do you expect OSHA’s rule to require new standards for masking, distancing, ventilation and other safety measures in the workplace?
    I think it will be narrowly focused on proving that people in the workplace are unlikely to be infectious. I think this will just be a rule around testing, vaccination and keeping track of the information your workers provide. But, as employers, you should think about other public health precautions that further reduce risk of virus transmission at work.
  3. Will companies be held responsible for not confirming test results if testing kits are not available?
    OSHA generally does not cite an employer if they have made a concerted effort to obtain something but cannot because of market conditions. This was the case with fireproof clothing, for example. When I was running OSHA, we told oil drilling companies their workers on drilling rigs should wear fireproof clothing. At the time, however, there was a real shortage. If a manager showed the OSHA inspector proof they had tried ordering the clothing but it hadn’t come, they would not be issued a citation or fined.  But while there is currently something of a shortage of COVID tests, I do not think it will be that difficult to get people tested weekly once the OSHA rule goes into effect. So I don’t know if that will be seen as a valid reason. And, of course, the more people are vaccinated, the fewer tests employers will need to use or require.
  4. Will employers be required to provide paid time off for testing?
    I don’t believe there will be a requirement for employers to provide time off for testing. OSHA may require employers to pay for the testing, but we will only learn this when the rule is issued.
  5. What agency is going to be overseeing the paid time off for getting the vaccine and recovering from it?
    That is under OSHA’s authority. Inspectors will ask to see the employer’s policy and records of paid time off. They will also respond to workers’ complaints.
  6. Does the rule apply only to a single workplace of 100 or more employees? Or does it also apply to a company with 100 total employees but based at a few different locations?
    If you have 100 employees scattered over the whole country, you’re still covered by the rule. But there may be different requirements in different states, as states can go beyond the federal requirements. All state OSHA plans will be required to adopt the federal standard as a minimum, and will be given some time, perhaps 30 days, to do so. I think that some states may delay implementation, so we can expect to see different rules in different states. I recommend that national employers develop and implement one policy across all their worksites in the country.
  7. Will the OSHA requirement extend to remote employees who meet outside the workplace for work assignments, for instance sales agents meeting with fellow agents or customers?
    I think it would, as long as they work for a company of 100 or more employees, and have some contact, some time, in the same place as another employee of the company.
  8. Will this OSHA rule apply only to W-2 employees, or to 1099 workers as well?
    OSHA looks at “employees” broadly, but if someone is a legitimately an independent contractor, I do not think they would be covered. 
  9. If a company utilizes temporary staffing agencies, who is responsible for verifying the status of those employees?
    Great question. In many cases, it is likely to be both the host employer and the staffing agency (if both have 100+ employees). The staffing agency because it is within their power to only send non-infectious workers to the host employer, and the host employer since the risk is to other workers at the site. 
  10. How will this rule affect U.S. companies with cross-border employees?
    OSHA only covers private-sector workers in workplaces located in the U.S. But all private-sector workers in U.S. workplaces may be covered.
  11. For employers that have accepted employee self-certification, do you anticipate that the new rule will require employers to now have documentation?
    Yes, I expect OSHA will require employers to inspect documents and keep a record of that inspection (and likely a copy of the document).
  12. Why doesn’t natural immunity from previously contracting COVID-19 count the same as being vaccinated?
    According to the CDC, people should be vaccinated regardless of whether they already had COVID-19 because: 
    –– Research has not yet shown how long you are protected from getting COVID-19 again after you recover from COVID-19.
    –– Vaccination helps protect you even if you’ve already had COVID-19.

    Evidence is emerging that people get better protection by being fully vaccinated compared with having had COVID-19. One study showed that unvaccinated people who already had COVID-19 are more than 2 times as likely than fully vaccinated people to get COVID-19 again.
  13. What will happen to employers if they don’t comply?
    Employers risk a fine if they do not meet the requirements of the rule.