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OSHA Releases COVID-19 Vaccine Mandate ETS

November 4, 2021

The Occupational Safety and Health Administration (OSHA) has released its anticipated COVID-19 vaccine emergency temporary standard (ETS). The ETS requires all employers of 100 or more employees to institute vaccination status recordkeeping policies, require unvaccinated employees to become fully vaccinated or undergo weekly COVID-19 testing, and enforce mask-wearing for all unvaccinated employees. The ETS defines “fully vaccinated” as receiving all doses required for a primary vaccination. The full text of the ETS is available here, an OSHA fact sheet is available here, and OSHA FAQs are available here

The ETS will become effective on December 5, 2021 for masking requirements and recordkeeping requirements, among others, and all employees must become fully vaccinated or begin testing weekly by January 4, 2022. The deadline for federal contractors to comply with a previously-released, stricter set of vaccine requirements (see our previous alert here) was pushed back from December 8 to January 4 to match the ETS deadline for other private companies. OSHA has also stated that it intends the ETS to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing. It is unclear how the ETS will interact with state workplace safety rules issued under an OSHA-approved plan. 

In the ETS, OSHA has limited coverage of the mandate to employers of 100 or more employees firm- or corporate-wide. Separate companies that share workplace safety obligations for a particular facility may be considered a single employer for purposes of the 100-employee threshold. The ETS does not apply to employees who do not report to a workplace where other individuals are present, employees while they are working from home, or employees who work exclusively outdoors. Healthcare employees are subject to a separate Healthcare ETS.

Under the ETS, covered employers must:

  • Establish a mandatory vaccination policy that addresses:
    • The COVID-19 vaccination requirement and whether weekly testing will be permitted as an alternative;
    • Medical and religious accommodations;
    • Paid leave for vaccination purposes;
    • Employee notification of positive COVID-19 tests; and
    • Disciplinary action for employees who do not comply with the policy;
  • Determine employee vaccination status, obtain proof of vaccination, and maintain records and a roster of each employee’s vaccination status;
  • Provide employees up to four hours of paid time off to receive each vaccination dose and paid sick leave to recover from any side effects experienced following each dose;
  • Ensure that employees promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
  • Immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 until they can meet return-to-work criteria; and
  • Keep removed employees out of the workplace until they meet return-to-work criteria.

If employees choose not to become fully vaccinated, covered employers must:

  • Ensure that each unvaccinated employee is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for more than one week); and
  • Ensure that any employee who is not fully vaccinated wears a face covering indoors or when occupying a vehicle with another person for work purposes, with limited exceptions. Employees who are not fully vaccinated do not need to wear a face covering when:
    • An employee is alone in a room with floor to ceiling walls and a closed door;
    • For a limited time while eating or for identification purposes;
    • When an employee is wearing a respirator or facemask; or
    • Where the employer can show that the use of face coverings is infeasible or creates a greater hazard.

Employees who are entitled to reasonable accommodations due to a disability or sincerely held religious belief that prevents them from becoming vaccinated are still required to be tested weekly. However, if testing for COVID-19 conflicts with an employee’s sincerely held religious belief, the employee may be entitled to an additional reasonable accommodation. The ETS does not require covered employers to pay for any costs associated with testing, but employers may have obligations to pay for testing under other laws, regulations, or collective bargaining agreements.

Finally, the ETS requires covered employers to provide employees with: (1) information about the requirements of the ETS and the employer’s policies established to implement the ETS; (2) the CDC document entitled “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation; (5) opportunities to examine and copy an employee’s own COVID-19 vaccine documentation and test results; and (6) the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

In sum, covered employers may wish to consider the following initial action items to ensure compliance with the ETS:

  • Provide the required information set forth above to employees;
  • Determine whether you will permit weekly testing as an alternative to the vaccination requirement;
  • Develop a COVID-19 policy that addresses the above requirements;
  • Develop a process for collecting and recording COVID-19 vaccination statuses and/or test results; and
  • Develop a process for removing employees who have tested positive for COVID-19 from the workplace and ensuring that such employees do not return to the workplace until they meet return-to-work criteria.

Federal guidance on this issue is complex and changing rapidly. If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.

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