Today, November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated Emergency Temporary Standard (ETS) requiring all businesses with at least 100 employees company-wide to mandate that their in-office employees get vaccinated against COVID-19 or wear a mask and test for COVID-19 on at least a weekly basis.
The ETS is not light reading at approximately 500 pages long. However, OSHA has published model policies, FAQ’s, a Fact Sheet, and a Webinar to assist employers with compliance. Below is brief summary of major points:
1. The EST does not apply to employees working from home or employees working exclusively outdoors.
2. By December 4, 2021, employers must:
(a) Publish to all employees a written mandatory COVID-19 vaccination policy, or
(b) Publish to all employees a written policy that allows weekly COVID-19 testing and mandatory face coverings in lieu of vaccination for all covered employees.*
*For option (b), employers must implement said testing policy for covered employees who are not fully vaccinated by January 4, 2021. The types of testing permitted by the ETS is detailed by OSHA. For example, testing cannot be self-administered or self-read to satisfy the requirements of the ETS.
3. By December 4, 2021, employers must also:
(a) determine the vaccination status of each employee,
(b) maintain a roster of vaccination status of each employee, and
(c) maintain proof of vaccination.*
*The vaccination status of employee and records of vaccination are considered medical records and are subject to applicable legal requirements for confidentiality of medical information.
4. Effective immediately, employers must provide up to 4 hours of paid time off to all employees for each dose of vaccination (boosters excluded) and “reasonable” paid sick time to recover from side effects. The paid sick time to recover from side effects can be taken from accrued sick leave. If no sick leave is available, employers must provide “reasonable” sick leave for this purpose.
5. Employers must also provide to all employees:
(a) information regarding the ETS,
(b) information regarding COVID-19 vaccination efficacy, safety, and benefits, including the CDC’s publication “Key Things to Know About COVID-19 Vaccines,” and
(c) employee protections against retaliation and discrimination, and penalties for providing false information to employers and OSHA.
6. But who pays for COVID-19 testing? OSHA does not provide a clear answer. The ETS expressly states it does not require employers to pay for costs associated with COVID-19 testing. However, OSHA cautions that employer payment for testing may be required by other laws, regulations, or collective bargaining agreements, and states the following:
“OSHA notes, for instance, that in certain circumstances, the employer may be required under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested. For example, if the employee testing is conducted in the middle of a work shift.”
7. Last, OSHA also addresses preemption of state laws and states:
“This ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.”
While legal challenges are expected, businesses should start preparing now to implement these requirements. Employers, be ready—the devil is in the details, and there are a lot of details beyond what is summarized above.
Do you have questions about the ETS? Don’t worry—we are here to help!
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