New OSHA Emergency Temporary Standard poised to go into effect

Employment Law

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (“ETS”) requiring all employers with 100 or more employees, with a few exceptions, to mandate vaccination or test employees weekly for COVID-19. 

The ETS requires employers to provide paid time off for workers to get vaccinated and paid sick leave for employees to recover from any side effects resulting from vaccination.

Covered employers are also required to develop, implement and enforce either a mandatory COVID- 19 vaccination policy or a policy requiring employees to choose to get vaccinated or to undergo regular testing and wear a face covering at work. 

The ETS will take effect Nov. 5, 2021. The first compliance deadline for employers is Dec. 5, 2021, which requires employers to provide time off for workers to get vaccinated or to ensure that employees who are not vaccinated are wearing masks and are being tested at least weekly. Employees must be fully vaccinated by Jan. 4, 2022 or submit to weekly testing if unvaccinated.

Covered Workplaces

Workplaces Not Covered Under the ETS 

  • Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance
  • Employees in healthcare services and healthcare support services settings covered by OSHA’s healthcare ETS
  • Workplaces of employers who have fewer than 100 employees 
  • Public employers in states without OSHA-approved state plans are not covered by this ETS.

Employees of Covered Employers Not Subject to the ETS

  • Employees who do not report to a workplace where other individuals such as coworkers or customers are present
  • Employees while they are working from home
  • Employees who work exclusively outdoors. However, these employees are to be included in the total count of employees to meet the 100-employee threshold for coverage.

Policy Options

Option 1

Employers must develop, implement and enforce a mandatory COVID-19 vaccination policy. Such a policy must require vaccination of all employees, other than those employees who fall into one of three categories: those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement. Employees who fall into these three categories must test weekly for COVID-19 and wear a face covering as per the ETS’ requirements. 

Option 2

In the alternative, employers may choose to establish, implement and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace. Employers must ensure that each employee who is not fully vaccinated is tested at least weekly if in the workplace once per week or within seven days before returning to work if away from the workplace for a week or longer. Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in limited circumstances. 

Documentation and Reporting

Employers must 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. A list of acceptable proof of vaccination status to determine if an employee is fully vaccinated is provided in the ETS. 

Employers must also report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and report work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. Employers may also have to make records available for examination and copying to an employee or an employee representative.

Employers must require each employee to promptly notify them when they receive a positive COVID-19 test or is diagnosed with COVID-19 and keep the employee removed from the workplace until return to work criteria are met.

Paid Time Off

Employers must provide employees with reasonable time off to receive the vaccination, including up to four hours of paid time (which includes travel 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. 

Notice 

Employers must provide each employee with information, in a language and at a literacy level that the employee understands, regarding the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety and the benefits of being vaccinated by providing the CDC document “Key Things to Know About COVID-19 Vaccines”, and laws that provide for criminal penalties for knowingly supplying false statements or documentation and retaliation and discrimination protection.

Deadlines

By Dec. 5, 2021

  • Establish compliancy policy.
  • Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status.
  • Provide paid time off for vaccination and for recovering from vaccination.
  • Require employees to promptly provide notice of positive COVID-19 test or COVID-19. diagnosis and remove these employees from the workplace until they can return to work as per the ETS.
  • Ensure employees who are not fully vaccinated wear face coverings as per the ETS.
  • Provide employees with information about the ETS.
  • Comply with the ETS’ reporting requirements and make records available.

By Jan. 4, 2022

  • Confirm employees have received their final vaccination dose.
  • Confirm 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 seven days before returning to work if away from the workplace for a week or longer.

THIS ARTICLE IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

Please continue to check Mackey Butts & Wise’s website at www.mbwise.com for more legal updates regarding COVID-19 vaccination.

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