In September, President Biden announced aggressive plans to combat the COVID-19 pandemic, taking the fight directly to the workplace and ordering mandatory vaccination or weekly testing to employers with 100 or more employees.
This week, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard(ETS) regarding the COVID-19 vaccination and testing requirements for employers. The ETS requires private employers with 100+ employees to develop, implement and enforce a mandatory COVID-19 vaccination policy for all employees or a mandatory weekly COVID-19 testing and face covering policy for unvaccinated employees.
The ETS applies to employers with 100+ employees at any time the ETS is in effect, regardless of industry. However, the ETS does not apply to workplaces covered by the Centers for Medicare & Medicaid Services rule or the federal contractor vaccination requirement. OSHA estimates that the ETS covers 84.2 million employees.
Although the testing requirement for unvaccinated employees is not effective until January 5, 2022, employers must be in compliance with all other requirements under the ETS - such as providing paid time for employees to get vaccinated and masking for unvaccinated workers - by December 5, 2021.
One key component of the ETS is the requirement that employers must support vaccination by providing employees with reasonable time, including up to four hours of paid time, to receive each vaccination dose as well as reasonable time and paid sick leave to recover from any side effects an employee experiences after each dose.
The ETS answers many of the questions from Biden’s September 9 announcement, such as whether employers will be required to consider medical and/or religious accommodation requests, whether the vaccination versus testing “choice” is the employer’s or the employee’s, how to determine coverage under the ETS in the joint employment context, and whether the government will provide financial assistance to pay for the additional PTO.
First, employees may seek exemption from the ETS requirements via medical and/or religious accommodation requests. OSHA estimates that about 5 percent of all covered employees will seek accommodations due to disability or a sincerely held religious belief, practice or observance that conflicts with the vaccination requirement. The federal laws that govern such accommodation requests exist independently of the Occupational Safety and Health Act and, therefore, OSHA does not administer or enforce those laws.
Second, covered employers may choose whether to implement a mandatory COVID-19 vaccination policy for all employees or require unvaccinated employees to submit to at least weekly COVID-19 testing and wear face coverings in the workplace or when occupying a vehicle with another person for work purposes. The ETS does not require employers to provide or pay for the costs associated with testing or face coverings unless required to do so by other law or a collective bargaining agreement. Regardless of an employer’s compliance choice, three categories of employees are not subject to the ETS requirements: (1) employees who do not report to a workplace where other individuals such as coworkers or customers are present; (2) employees who are working from home; and (3) employees who work exclusively outdoors. The ETS rules do apply if and when such employees’ work conditions change.
Third, in determining whether an employer has 100 or more employees for coverage purposes, all employees across all of an employer’s United States locations are counted, including part-time employees. Independent contractors do not count towards an employer’s total number of employees. It is important to note that two or more related entities may be considered a single employer “if they handle safety matters as one company.” In such situations, the employees of all entities must be counted together to determine whether the integrated single employer is covered by the ETS.
Fourth, the ETS does not offer tax credits or otherwise provide financial assistance to covered employers for the vaccination-related paid time off mandated by the ETS.
Notably, the ETS also addresses the maintenance of vaccination records. It requires covered employers to determine the COVID-19 vaccination status of each employee and maintain records, including acceptable proof of vaccination, and a roster of each employee’s vaccination status.
Covered employers are also required to provide COVID-19 vaccination and testing records to employees in certain circumstances. Employers must “make available for examination and copying” an employee’s vaccination documentation and any COVID-19 test results to that employee and to anyone having written consent from that employee. Covered employers must also provide an employee with the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace.
The ETS also requires employers to provide employees with the following:
(1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
(2) the CDC document “Key Things to Know About COVID-19 Vaccines”;
(3) information about protections against retaliation and discrimination; and
(4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
The ETS creates employee notification obligations as well. It mandates that employers:
(1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
(2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; and
(3) keep removed employees out of the workplace until they meet criteria for returning to work.
The ETS specifically states that it “preempt[s]all State and local laws that relate to the issues addressed by [the] ETS” including “State and local requirements banning or limiting the authority of employers to require vaccination, face covering, or testing.”
OSHA states that it will continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become fully vaccinated against COVID-19 and as the pandemic continues to evolve. OSHA also states that it may update the ETS, as appropriate if it finds a grave danger from the virus no longer exists or new information indicates a change in measures necessary to address the grave danger.
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