On November 5, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published in the Federal Register the long-awaited COVID-19 Emergency Temporary Standard (ETS) to protect unvaccinated employees of employers with 100 or more employees from the risk of contracting COVID-19. While there are several ongoing legal challenges to this ETS, employers should familiarize themselves with the provisions of the ETS and make preparations for the implementation of these new requirements. Key provisions of the ETS include the following:
Employer Policy on Vaccination. Covered employers must develop, implement, and enforce a written COVID-19 vaccination policy. Employers can choose either a “hard” vaccine mandate with no testing option or a “soft” vaccine mandate where employees have the option to get vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
Exceptions to the Application. The standard explicitly does not apply to the following entities/persons:
- Federal Contractors. Workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- Healthcare Workers. Settings where an employee provides healthcare services or healthcare support services when subject to the requirements of 29 C.F.R. § 1910.502; and
- Remote, Isolated, or Outdoor Workers. Employees of covered workplaces who do not report to a workplace where other individuals are present, or while working from home, or employees who work exclusively outdoors.
Vaccination Records. Employers must determine the vaccination status of each employee and collect proof of vaccination from employees who are fully or partially vaccinated. Employers must maintain an ongoing roster of the vaccination status of each employee whether unvaccinated, partially vaccinated, or fully vaccinated.
Paid Time Off. Employers must—in order to support employee vaccination—provide each employee up to four hours of paid time off to get vaccinated. This maximum of four hours of paid leave cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. Additionally, employers must provide reasonable time and paid sick leave to employees to recover from any side effects of the vaccine. This paid sick leave can be in the form of an employee’s accrued sick leave, if available. If the employee does not have available sick leave, leave must be provided for this purpose.
Costs of Testing. The ETS states that employers do not have to pay for the cost of recurrent testing under the “soft” vaccine mandate above unless required by another law, regulation, or collective bargaining agreement.
Case Reporting in the Workplace. Regardless of employee vaccination status or any testing requirements, each employer must: (1) require each employee to promptly notify the employer when the employee receives a positive COVID-19 test or is diagnosed with COVID-19; (2) immediately remove any employee from the workplace who receives a positive COVID-19 test or is diagnosed with COVID-19 and keep the employee removed until the employee: (i) receives a negative result on a COVID-19 test; or (ii) meets the return to work criteria in CDC’s ‘‘Isolation Guidance”; or (iii) receives a recommendation to return to work from a license healthcare provider.
Case Reporting to OSHA. Employers must report COVID-19 fatalities and in-patient hospitalizations to OSHA. The ETS requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
Information Provided to Employees. The ETS requires employers to inform employees, in a language and at a literacy level the employees understand, about the following: (1) 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) the protections in the OSH Act against retaliation and discrimination (contained in the OSHA Fact Sheet titled “Workers’ Rights under the COVID-19 Vaccination and Testing ETS”); and (4) information about penalties associated with knowingly supplying false statements or documents.
Religious/Disability Exceptions. Employees may be entitled to a reasonable accommodation from the requirements of the ETS because of a sincerely held religious belief under Title VII of the Civil Rights Act of 1964 or because of a disability under the Americans with Disabilities Act. The ETS explicitly cites to published EEOC guidance in determining the scope of these accommodations.
Effective Date. The ETS states that the bulk of the requirements take effect 30 days after publication in the Federal Register, which is December 5, 2021. The weekly testing requirement takes effect 60 days after publication, which is January 4, 2022. This timeline may be affected by ongoing litigation.