By: Chris Fontan
On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its anticipated, or controversial, emergency temporary standard (“ETS”) aimed at curbing further spread of COVID-19. The ETS—which is a “vaccinate-or-test” workplace mandate—applies to most employers with 100 or more employees (“Employers”). Under the ETS, Employers must either mandate COVID vaccinations or require masking combined with proof of negative COVID tests on a weekly basis as a condition of employment.
All requirements of the ETS, other than testing for unvaccinated employees, are effective 30 days after publication of the ETS in the Federal Register (i.e., Dec. 5, 2021). Thus, the ETS requires Employers to ensure all unvaccinated employees working “in person” begin wearing masks by Dec. 5, 2021, and start providing negative COVID-19 tests on a weekly basis beginning Jan. 4, 2022.
As expected, numerous legal challenges to the ETS have been and will continue to be made in the coming weeks. As we previously reported, the U.S. Court of Appeals for the Fifth Circuit recently enacted a nationwide injunction, temporarily preventing OSHA from enforcing the ETS. While the future of the ETS remains uncertain due to this and similar legal challenges, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues. As a result, employers must continue to prepare for potential compliance with the ETS.
Overview of the ETS’ Requirements
According to a “Fact Sheet” prepared by OSHA, the ETS requires Employers to do the following:
- Implement a mandatory, written COVID-19 vaccination policy, with or without an exception allowing employees to instead undergo weekly COVID-19 testing (beginning Jan. 4, 2022) and wear a face covering at the workplace (beginning Dec. 5, 2021).
- Obtain proof of the vaccination status of each employee.
- Create a roster/list showing the vaccination status of each employee.
- Securely maintain both the proof of vaccination status and the roster/list.
- Provide employees with up to four (4) hours of paid time off to receive each primary vaccination injection/dose.
- Provide employees with a “reasonable amount” of paid sick leave to recover from any side effects experienced following each primary vaccination injection/dose.
- Ensure that each employee who is not fully vaccinated is tested at least weekly for COVID-19 (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).
- 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 (subject to specific, limited situations).
- Require employees to promptly provide notice when they receive a positive COVID-19 test (or are diagnosed with COVID-19). Immediately remove any employee, regardless of vaccination status, from the workplace who receives a positive COVID-19 test/is diagnosed with COVID-19, and keep the employee out of the workplace until the return-to-work criteria are met.
- Provide each employee with information they can understand about: the requirements of the ETS and workplace policies and procedures established to implement the ETS, the CDC document “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 fatalities to OSHA within 8 hours of the employer learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.
- Make certain records available to an employee or an employee representative for examination and copying.
Steps for Complying with the ETS
- Determine if your organization is covered by the ETS.
- Determine vaccination status of your organization’s employees.
- Evaluate available options and logistics for testing—even Employer’s opting for full vaccination mandate will need testing options as a potential “reasonable accommodation” for claimed disabilities and/or religious exemptions.
- Assess potential impact of paid-time-off and other new requirements.
- Determine your organization’s approach and draft a written policy.
- Craft necessary and required employee communications.
- Establish your organization’s reporting and recordkeeping protocols.
Employers are encouraged to take these steps, to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments. If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.