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Volume XII, Number 267


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Vaccine Mandate UPDATE

As expected, the Emergency Temporary Standard (ETS) for mandatory vaccinations was published today.  The ETS is available here.

Contrary to news reports that the compliance date is January 4, the first compliance date is December 5.  The final compliance date is January 4.  From the ETS:

The effective date for this ETS… is the date of publication in the Federal Register [November 5, 2021]. The compliance date for all provisions in the ETS is 30 days after the effective date [December 5, 2021]except for (COVID-19 testing for employees who are not fully vaccinated), which requires compliance within 60 days of the effective date [January 4, 2022].

The confusion regarding compliance is understandable.  The 60 day compliance period is intended to allow time for businesses to develop policies and procedures and to allow employees to be vaccinated before employee testing becomes mandatory.  According to OSHA, employees receiving the Johnson & Johnson vaccine can be vaccinated anytime through January 4, 2022. But employees receiving the other vaccines must begin the vaccination process earlier.  For employees receiving the Pfizer-BioNTech vaccination, the first shot can be received “up to 39 days from” November 5, i.e., December 14. Employees receiving the Moderna vaccine must begin the process “up to 32 days from” November 5, i.e., December 7.  As of January 4, 2022, unvaccinated employees will be subject to weekly testing, and employers with unvaccinated employees will be subject to reporting requirements.

News reports this morning indicate that more than 20 states intend to take legal action challenging the mandate.  In the meantime, businesses covered by the mandate should begin planning to comply in case the legal challenges fail.  Covered businesses should develop:

  1. A vaccination policy

  2. An employee vaccination status tracking process

  3. An employee vaccination support policy

  4. A face coverings policy (for unvaccinated employees)

©2022 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XI, Number 309

About this Author

Jean E. Novak Labor and Employment Attorney Strassburger McKenna

Jean E. Novak has been with Strassburger McKenna Gutnick & Gefsky (SMGG) since 2002 and is Co-Chair of the Firm’s Employer-Employee Relations practice. Ms. Novak brings practical, business-oriented solutions to labor and employment challenges.

Ms. Novak’s years of private and in-house practice have focused in the areas of manufacturing, healthcare, technology, and education. She has trained business managers and owners on a variety of subjects including policy development, discrimination, and talent management trends.

Matthew Morella Attorney Strassburger

Matthew Morella is an associate attorney at Strassburger McKenna Gutnick & Gefsky. Mr. Morella’s area of focus is Education and Public/Non-Profit.

As a 2020 graduate of the University of Pittsburgh School of Law, Mr. Morella gained valuable experience working in both an environmental law clinic and a low-income taxpayer clinic. As part of his work with the University of Pittsburgh School of Law’s Low-Income Taxpayer Clinic, he wrote a section of Amicus Brief to the Supreme Court focused on General Motors v. the Commonwealth of Pennsylvania....

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