Update: On November 16, 2021, OSHA updated their website to announce that employers should suspend activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its highly anticipated Emergency Temporary Standard (ETS) detailing the vaccine mandate first announced by President Biden in September. It requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or require unvaccinated employees to undergo weekly testing for COVID-19 and wear a face covering at work. This ETS is intended to preempt any state and local laws that ban or limit an employer from requiring vaccination, masks, or testing.
Two days later, a federal court temporarily blocked it. In its decision, the court cited “statutory and constitutional issues” with the mandate. The government has until 5pm on Monday, November 8, 2021, to respond to the lawsuit. Employers should still prepare to comply and stay tuned for future updates.
Here we address the mandate’s most commonly-asked questions.
Who is covered by the ETS?
Employers with 100 or more employees are covered. The count is based on the total number of employees company-wide at all U.S. locations, including part-time employees. Independent contractors do not count as employees. The vaccine mandate will not apply to employees who only work from home, report to a workplace where no other individuals are present, or work exclusively outdoors. However, these employees are to be included in the total count to meet the 100-employee threshold. Federal contractors and employees in healthcare settings are subject to separate OSHA requirements.
When do the requirements take effect?
By December 5, 2021, unvaccinated workers must begin wearing masks indoors or when occupying a vehicle with another person for work purposes. By January 4, 2022, on-site employees must be fully vaccinated or tested for COVID-19 weekly. Booster shots are not currently included in the definition of fully vaccinated.
Will employers have to pay for the weekly testing option?
The ETS does not require employers to pay for or provide COVID-19 tests. However, some state laws or union agreements may oblige employers to pay for the costs of mandatory medical tests or reimburse workers for job-related expenses.
Do employers have to provide vaccine-related paid time off?
Yes, the ETS requires up to four hours of paid time off per dose. This leave must be separate from any personal, sick, or vacation already provided. Employees may use accrued paid sick leave when recovering from vaccine side effects.
What steps should covered employers take by December 5, 2021?
Develop your policy – Prepare a policy outlining your COVID-19 vaccination, testing, and masking requirements. Include procedures for determining vaccination status, how to request an exemption or reasonable accommodation based on a disability or religious belief, and corrective action for employees who do not abide by the policy.
Disseminate to employees – The ETS requires employers to provide employees and new hires the following: any policies and procedures the employer establishes to implement this ETS; the CDC document “Key Things to Know About COVID-19 Vaccines”; information on the protections against retaliation and discrimination; and laws concerning criminal penalties for knowingly supplying false statements or documentation.
Implement and enforce – Start tracking vaccination status, allow for the paid time off entitlement, enforce masking, and follow the quarantine obligations after a positive COVID-19 diagnosis.
What are the recordkeeping requirements?
Employers must request acceptable proof of vaccination from vaccinated employees, make or retain a copy of the documentation for your records, maintain a roster of each employee’s vaccination status, and keep records of each COVID-19 test result for unvaccinated employees. The records and roster are considered employee medical records and must be maintained confidentially.
How long will the ETS be in effect?
OSHA anticipates that this ETS will be in effect for six months and will continue to monitor trends in COVID-19. OSHA will update the ETS as needed. After six months, an ETS must be replaced by a permanent OSHA standard following a formal rule-making process.
How will these rules be enforced?
OSHA may request prompt access to your written policy and aggregate number of fully vaccinated employees along with the total count of employees to determine compliance. OSHA will investigate complaints, and companies that fail to comply could face penalties starting at $13,653 per violation. A willful violation could go as high as $136,532 per violation.
Will this be challenged in court?
Yes, it is expected to face multiple legal challenges. OSHA justifies the ETS by claiming unvaccinated workers face a “grave danger” from COVID-19 in the workplace. Lawsuits will argue that the ETS does not effectively address a “grave danger” if emergency action is not necessary to protect workplaces with fewer than 100 employees from such danger. Even though this mandate may not survive judicial scrutiny, employers should stay prepared and take action to develop and implement a compliant policy.
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DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion.