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Tuesday, January 11, 2022

Illinois Department of Labor Adopts Federal OSHA Vaccination/Testing Rule

Last Friday, the Illinois Department of Labor adopted by reference the federal OSHA rule requiring vaccination or testing of employees by certain covered businesses (Emergency Temporary Standard or ETS), as follows:

The Department hereby adopts as a rule of the Department, through incorporation by reference, the amendments to 29 CFR 1910, 1915, 1917, 1918, 1926, and 1928 found in 86 FR 61402, published November 5, 2021, titled COVID-19 Vaccination and Testing; Emergency Temporary Standard. The effective date for this Standard shall be January 24, 2022, and the Standard shall expire on July 24, 2022.

Although the federal ETS only applies to private businesses (non-governmental), some states, including Illinois, have expanded OSHA rules to also apply to state and local governments. As a result, Illinois local governments with 100 or more employees (including municipalities, park districts, libraries, etc) should get ready to implement the new vaccine and testing requirement over the next few weeks. 

Note that although the new Illinois rule goes into effect on January 24, 2022, the Department has provided some time for covered employers to come into compliance. Deadlines for the adoption of vaccination policies and implementation of the various requirements of the new rule are posted on the Department's website (and reprinted below).

It is important to understand that even though the federal ETS has been challenged in multiple lawsuits and emergency stay requests, there is currently no legal restriction that would excuse implementation by covered employers. That could change as we wait to see how the U.S. Supreme Court decides the current challenges to the federal ETS that are in front of that Court. 

In sum, the federal ETS rule is now effective (as of January 10th) and requires covered private businesses (private businesses with 100 or more employees) to comply with the vaccination and testing requirements. The Illinois Department of Labor rule goes into effect on January 24th, and will expand the federal ETS to also require government employers with 100 or more employees to adopt vaccination policies and implement the new rule by February 24th.

Table of effective dates
Please see OSHA Standard 1910.501 for paragraph references.
RequirementFebruary 24, 2022March 25, 2022
Establish policy on vaccination (paragraph (d))X 
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e))X 
Provide support for employee vaccination (paragraph (f))X 
Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h))X 
Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h))X 
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i))X 
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j))X 
Report work-related COVID-19 fatalities to IL OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k))X 
Make certain records available (paragraph (l))X
Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g)) X


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