On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) published an emergency temporary standard (“ETS”) requiring that covered employers develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to choose whether to be vaccinated or undergo weekly COVID-19 testing and wear a face mask at work. The ETS will be published in the Federal Register on November 5, 2021. While the ETS takes effect immediately, it is still subject to review and comment before it can become a final standard.
The ETS defines “covered employer” as an employer with 100 or more employees company-wide. It further requires that:
- Employers must determine the vaccination status of employees by obtaining proof of vaccination and maintaining records of each employee’s vaccination status,
- Employees must give prompt notice if they test positive or receive a COVID-19 diagnosis and comply with required return to work protocols,
- If an employee is not fully vaccinated, the employee must wear a face mask when indoors or occupying a vehicle with another employee and test each week that the employee enters the office, or within 7 days before returning to work if they have been away from the workplace for a week or longer.
Employers can require that unvaccinated employees pay for the cost of weekly testing themselves, unless the employer is obligated to pay for testing due to a collective bargaining agreement or other laws. However, employers must provide employees up to 4 hours of paid leave to get vaccinated and provide a “reasonable amount” of paid sick leave to workers to recover from side effects.
Employers have 30 days to implement a policy that complies with the ETS, with full vaccination or weekly testing enforced as of January 4, 2022. Lawsuits are expected that may ultimately enjoin enforcement of the ETS. However, until that time, covered employers should anticipate that they will need to comply.
It should be noted that healthcare employers do not have the option of implementing a policy that permits vaccination or testing. All healthcare workers are required to be vaccinated by January 4, 2022, if their workplace receives Medicare or Medicaid federal funding.
OSHA is offering compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials. Additionally, please contact a member of Stock and Leader’s Employment Team if you have questions or concerns.