On November 4, 2021, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) mandating private employers with 100 or more employees require their workers to be fully vaccinated against COVID-19 by January 4, 2022, or tested weekly. However, The Fifth Circuit has now issued a stay on the ETS. Read on to learn what this means for employers.
Private Employers with 100 or More Employees
The OSHA ETS mandates that private employers with 100 or more employees ensure their workers are fully vaccinated against COVID-19 by January 4, 2022 or require unvaccinated employees to provide a weekly negative test result.
Effective Dates: Employers must ensure most provisions are addressed by 30 days after the date of publication in the Federal Register (December 5, 2021) and with the testing requirement by 60 days (January 4, 2022) after the date of the publication in the Federal Register. This is a temporary standard lasting only six months (unless made a permanent standard).
Covered Businesses: Private employers with 100 or more employees, at any time the ETS is in effect. All employees must be counted regardless of job or vaccination status.
Requirements Do Not Apply To:
- Employees who do not report to a workplace where other individuals are present.
- Employees while working from home.
- Employees who work exclusively outdoors.
Vaccination Policy and Procedure:
- Develop, implement, and enforce a COVID-19 vaccination policy.
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
Paid Time Off:
- Provide employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. The paid time is at the regular rate of pay and employers cannot require employees to use accrued time, such as vacation or sick, to get vaccinated.
Testing and Positive Test Results:
- Ensure that each employee who is not fully vaccinated is 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).
- Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19, immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; and keep the employee out of the workplace until return to work criteria are met.
- Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
Communication to Employees:
- Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Reporting and Recordkeeping:
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
- Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.
Other Vaccination Mandate Considerations
- A communication to your employees that explains that you have an obligation to comply with vaccination mandates will help with setting expectations.
- Your vaccination policy should detail the requirements that you have decided upon and the consequences for noncompliance.
- Employers are not required to provide or pay for tests with the OSHA ETS. However, employers may be required to pay for testing because of other laws or collective bargaining agreements.
- Both vaccine status and test results are confidential medical information that should be kept confidential and separate from an employee’s personnel file.
- Section 7 of the National Labor Relations Act (NLRA) protects workers at both unionized and non-unionized workplaces who engage in concerted activity for the purpose of mutual aid and protection.
Federal Appeals Court Blocks OSHA's Vaccination or Testing Mandate
On Friday, November 5, 2021, multiple parties filed suit in the Court of Appeals for the Fifth Circuit challenging OSHA's Emergency Temporary Standard (ETS).
Within 24-hours, the Fifth Circuit issued a brief order staying the ETS until it could be fully reviewed by the Court.
The outcome of the OSHA ETS is uncertain at this time.
What Should Employers Do?
Employers should not assume they will be relieved of their obligations. The best thing employers can do is to become familiar with the requirements of the OSHA ETS and be prepared to implement those requirements.
Employers should carefully consider applicable federal, state, and local laws regarding vaccination mandates when deciding how to address COVID-19 vaccination in their workplace and should consult with legal counsel as needed for specific guidance on managing their responsibilities and risk.
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