Today, the Occupational Health and Safety Administration (OSHA) issued the anticipated emergency temporary standard (ETS) that requires all employers with 100 or more employees to ensure their workforce is fully vaccinated from COVID-19 or require unvaccinated workers to submit to regular testing after January 4, 2022. The ETS also requires unvaccinated workers to begin wearing masks by December 5, 2021.
Who is Covered by the ETS?
- COVERED EMPLOYERS: Private employers that have at least 100 employees firm- or company-wide, including part-time employees, those from staffing companies, and employees working from home. The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including but not limited to retail, manufacturing, construction, maritime, and hospitality, but does not apply to federal employees/contractors or those providing healthcare service or healthcare support services, which are covered by other rules.
- COVERED EMPLOYEES: All employees of a covered employer, except those (1) who do not report to a workplace where other individuals are present, such as co-workers or customers, (2) who are working from home, and (3) who work exclusively outdoors.
What are Covered Employers’ Obligations Under the ETS?
- Develop, implement, and enforce a mandatory COVID-19 vaccination policy that requires vaccination of all employees unless (1) medically contraindicated; (2) a medical necessity requires a delay in vaccination; or (3) legally entitled to reasonable accommodations based on disability or sincerely held religious beliefs.
- Alternatively, covered employers can develop, implement, and enforce a written policy allowing the employee to choose either to be fully vaccinated or to undergo weekly COVID-19 testing and wear a face covering in the workplace.
- Determine the vaccination status of each of its employees, obtain proof of vaccination from each employee, and maintain a record of their vaccination status (i.e., copy of vaccination card) with a roster of each employee’s vaccination status and make their employees’ COVID-19 vaccine documentation and test results available for inspection and copying by OSHA. Employers must make available to an employee or an employee representative the aggregate number of fully vaccinated employees at a workplace with the total number of employees at that workplace.
- Provide employees reasonable time, including up to 4 hours of paid time, to receive each vaccine dose, and reasonable time and paid sick leave to recover from any side effects experienced by employees following each dose.
- If the employer’s policy permits employees to choose between vaccination and testing, they must ensure that each non-fully vaccinated employee is tested for COVID-19 at least weekly (if the employee is in the workplace at least once per week) or within 7 days before returning to the workplace (if the employee has been away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment of testing may be required by other laws or collective bargaining agreements. OSHA notes that employers may voluntarily bear the costs of testing.
- Require their employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19. Employers are required to immediately remove any employee from the workplace, regardless of vaccine status, who has tested positive or received a diagnosis by a licensed healthcare provider and keep the removed employees out of the workplace until they meet the criteria for returning to work.
- Make sure that employees who are not fully vaccinated wear face coverings when indoors or in a vehicle with another person for work-related purposes. Employers should not prevent employees from voluntarily wearing face coverings, even if they are fully vaccinated.
- Provide employees with information about the requirements of the ETS and workplace policies and procedures, the CDC document titled “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Report work-related COVID-19 deaths within 8 hours of the employer learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours.
When Must Covered Employers Comply with the ETS?
- The ETS is effective immediately upon publication in Federal Register. Masking requirements for unvaccinated workers begin on December 5, 2021. Employers have 30 days after publication to develop and implement policies and obtain vaccination information from employees. Testing requirements for those employees who are not fully vaccinated begin 60 days after publication
Legal challenges to the mandate are expected to be filed and we will keep you up to date on any changes in the implication timeframe.
OSHA’s ETS and the other rule issued today by the Centers for Medicare and Medicaid Services (CMS) for health care workers (which will be covered in a separate alert) cover an estimated 100 million workers. Two-thirds of businesses are now REQUIRED to have written COVID-19 vaccination policies and procedures for addressing requests for religious and/or medical accommodations, and record keeping procedures.
Weber Gallagher’s Employment Group previously provided guidance on disability and religious accommodations.
On November 11, 2021, our Employment Law partners conducted a webinar to discuss both the OSHA ETS and CMS vaccine requirements. You can view the webinar here.
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