Effective November 5, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its emergency temporary standard (ETS) to protect employees from the spread of the coronavirus in the workplace.
The ETS requires employers with more than 100 employees companywide, with certain exceptions, to ensure their employees get vaccinated against the coronavirus or wear a mask and test for COVID-19 on at least a weekly basis.
The ETS does not, however, apply to workplaces that are covered by the federal contractor requirement or a new vaccination directive from the Centers for Medicare & Medicaid Services for health care workers at facilities that participate in Medicare and Medicaid programs. It also does not apply to employees of covered employers who are working from home, working exclusively outdoors, or who do not report to a workplace in which other employees or customers are present.
Under this standard, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS requires employers to establish written policies to implement the mandate-or-test requirements.
The employer must provide a reasonable amount of time to each employee for each of their primary vaccination doses and provide up to four (4) hours paid time, including travel time, at the employee’s regular rate of pay for this purpose. Furthermore, the employer must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose. These paid leaves related to the inoculation of employees can be deducted from the employees’ accrued sick leave.
Employers are not required to pay for or provide the tests unless they are otherwise required to by state or local laws or in collective bargaining agreements.
The ETS also requires employers to do the following:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status and employers must not allow them to return to work until they meet the return-to-work required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly, if the worker is in the workplace at least once a week, or within seven (7) days before returning to work if the worker is away from the workplace for a week or longer.
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
- Provide each employee with information they can understand about the requirements of the ETS and the workplace policies and procedures established to implement the ETS; vaccine efficacy, safety and the benefits of being vaccinated and, employee rights and protections.
- Report to OSHA work-related COVID-19 fatalities within eight (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.
Although the ETS became effective on November 5, 2021, date that it was published in the Federal Register, the mandate has been temporarily stayed by the Court of Appeals for the Fifth Circuit and challenged in other federal courts. If the mandate stands as promulgated by OSHA, employers must comply with all requirements within thirty (30) days of publication, that is by December 5, 2021, with the exception of weekly testing requirements which is effective within sixty (60) days of publication, that is by January 4, 2022. Thus, employers should start assessing the vaccination status of their employees