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Thursday, November 11, 2021

Labor & Employment Client Alert: The Wait Is Over - OSHA Issues Emergency Temporary Standard Effective December 4, 2021

By: Lindsay M. Massillon 

On September 9, 2021, President Joe Biden issued a series of mandates related to the COVID-19 vaccine. Among his mandates, President Biden directed the Occupational Safety and Health Administration ("OSHA") to issue a regulation requiring all employers with 100 or more employees to ensure their workforce is "fully vaccinated or require workers who are unvaccinated to undergo weekly COVID-19 testing" before entering the workplace.

Since President Biden's Order, there have been a lot of unanswered questions and confusion among private employers. As we noted in our initial Alert on this issue, the only thing that seemed clear was that employers with 100 or more employees should consider implementing a testing and/or vaccination policy in preparation for OSHA's anticipated rule.

Finally, on November 4, 2021, OSHA issued its Temporary Emergency Standard ("ETS") which set forth a variety of requirements for covered employers. As it relates to this ETS, an employer is "covered" if it is a private employer with 100 or more employees across the country. When counting employees, employers must include part-time, full-time, and remote employees. Independent contractors are not "employees" and therefore are not included in the count.

Below is a summary of the ETS' requirements:

  1. Creation of a Written Policy. Employers must (1) develop, implement, and enforce a mandatory COVID-19 vaccination policy; or (2) establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. Covered employers are expected to comply by December 4, 2021. Given the intervening Thanksgiving holiday, time is absolutely of the essence.

  2. Employers Must Obtain Proof of Vaccination. Covered employers must also determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status also by December 4, 2021.

  3. Paid Time for Employees. Further, covered employers must support employee vaccination which means providing up to four hours of paid time off from work to obtain the vaccination as well as provide a "reasonable time" of paid sick leave for employees who are recovering from any side effects experienced following each dose of the vaccine. The ETS does not set forth what is considered a "reasonable time," but does state that the employer may set a cap on the time allowed to recover from any side effects.

  4. Employee Requirements. Assuming an employer has a mandatory vaccination policy, employees may only be excused from that policy if: (1) the vaccine is medically contraindicated; (2) if a medical necessity requires a delay in vaccination; or (3) if the employee has a disability under the Americans with Disabilities Act ("ADA") or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. For those employees who are not fully vaccinated, employers must ensure that each such employee is tested for COVID-19 weekly if that employee reports to the workplace at least once per week. Employers are not required to pay for this testing under the ETS. As long as a covered employer's employees complete all doses of the selected vaccine (one for Johnson and Johnson/Jannsen and two for Pfizer and Moderna) before January 3, 2022, those employees will not be required to undergo weekly testing.

  5. Face Coverings for Non-Vaccinated Employees. Employers must ensure that all non-vaccinated workers wear face coverings while indoors or while inside company vehicles, with limited exceptions.

  6. Removal of Employees who Test Positive for COVID-19. Employees must promptly notify their employer upon testing positive for COVID-19. Employers must then immediately remove that employee from the workplace until the employee receives a negative test result, meets return to work criteria in CDC's isolation guide, or receives a recommendation to return to work from a licensed health care provider. Employers are not required to provide paid time off for a positive COVID-19 test but are not precluded from doing so.

The above information is a general overview of the essential requirements and deadlines set forth in the ETS. OSHA has published a fairly comprehensive FAQ section, click here to read, which can be used as a resource as employers start to navigate the ETS' requirements. We expect that there will be legal challenges to the ETS given the extent of the rule. As we noted in our first Client Alert on this topic, ETSs frequently face challenges and are also frequently limited by courts as a result. Even if there are no legal challenges, an ETS is only effective for six months unless OSHA creates a permanent standard, a process that can take several years. 

With that said, for the time being, employers with 100 or more employees must start working with their human resources department and employment counsel to create a written policy related to vaccination and testing requirements.

Fowler White's Labor & Employment Group is here to assist you with preparing effective and thorough vaccination and COVID-19-related policies, drafting and revising employee handbooks, compliance and documentation, and managing accommodation requests. We will continue to monitor the status of OSHA's ETS and provide updates accordingly.

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