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OSHA Publishes Emergency Temporary Standard

OSHA published the much-anticipated Emergency Temporary Standard on November 5th, 2021. This represents the boldest move the Biden Administration has made to date to persuade reluctant Americans to get vaccinated against COVID-19. Affected employers are required to comply with most provisions of this ETS by December 5, 2021, and with its testing requirements by January 4, 2022.

These requirements will apply to about 84 million workers at medium and large businesses across the U.S., although it is not clear how many of those employees are currently unvaccinated. Tougher rules apply to another 17 million people working in nursing homes, hospitals and other healthcare facilities receiving money from Medicare and Medicaid. Those employees must receive the COVID vaccine and will not have an option for weekly testing.

Under this ETS, affected employers include private employers with 100 or more employees (company-wide). Employers must include all employees across all U.S. workplaces, regardless of current vaccination status or where they complete their work, as well as part-time employees, temporary and seasonal workers who are employed directly by the employer while the ETS is in effect.

Requirements
The ETS requires employers to:

  • Develop, implement and enforce a mandatory COVID-19 vaccination policy; or

  • Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and submit to weekly testing prior to reporting to work for the week.

Employers must determine the vaccination status of each individual employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccination status by December 5, 2021. All personally identifiable medical information must be maintained in a confidential manner. The records and roster of employees is considered employee medical information and must be maintained as such, and not disclosed except as required by this ETS or other federal law.

Mandatory Vaccination Policy
Affected employers must have a policy in place and must communicate that policy and related information to employees by December 5, 2021. If requested, an employer must be able to provide a copy of their policy to OSHA within 4 business hours of the request. Current vaccination policies should be reviewed to ensure they comply with the published ETS and outline vaccine requirements, exclusions, how required information will be collected, paid leave with regards to employees obtaining the vaccine, notification process for positive tests or diagnosis, removal from the workplace, procedure used for requesting records and disciplinary actions for employees who do not comply.

Vaccination Timing
So long as an employee completes the entire primary vaccination series by January 3, 2022 (60 days after publication of the ETS), that employee does not have to submit to weekly testing, even if that employee has not yet completed the two-week waiting period that is required to meet the definition of fully vaccinated.

Because the timing of doses for the three main vaccine series available in the US differ, employers and employees must keep the following in mind in order to be exempt from the testing requirements imposed by this ETS:

  • Johnson & Johnson- the primary vaccination series takes 1 day to complete. Employees who choose Johnson & Johnson must have their one dose on or before January 4, 2022 (60 days after publication).

  • Pfizer-BioNTech- the primary vaccination series takes 21 days to complete. Employees who choose Pfizer must receive their first dose on or before December 13, 2021 (39 days after publication) and get their second dose 21 days later.

  • Moderna- the primary vaccination series takes 28 days to complete. Employees who choose Moderna must receive their first dose on or before 32 days after publication (no later than December 6, 2021) and get their second dose 28 days later.

Weekly Testing and Face Coverings
Effective January 4, 2022, employees who have not yet received the requisite number of doses for a primary vaccination series must begin weekly testing prior to reporting to work and wear a face covering when in the workplace or a vehicle with other employees. The employee must be able to present a negative test prior to entering the workplace.

The ETS does not require employers to pay for any costs associated with testing. However, it is important to note that payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

Exemptions
Employees do continue to have the option to submit for religious or medical exemptions.

In addition, the requirements of the ETS do not apply to:

  • Employees who do not work with other individuals present;

  • Employees when they are working from home;

  • Employees who work exclusively outdoors;

  • Those covered under the Sager Federal Workforce Task Force;

  • Those covered by the health care ETS;

  • Employers that have 99 or fewer employees; and

  • Public employers in states without state plans.

It is important to remember that, while the requirements of this ETS may not apply to one of the employees listed above (for example, a fully remote employee), that employee does count toward the total number of employees to determine if the employer is required to comply with this ETS.

Paid Leave
Employers are required to allow reasonable time, including up to four hours of paid time, to receive a primary vaccination dose. An employer may not use an employees allotted PTO or sick leave to satisfy this requirement, the paid time must be separate and apart from any earned time by the employee.

Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. OSHA suggests that two days of pay would be reasonable. The ETS does allow employers to utilize an employee’s PTO or sick leave for this payment. However, if the employee does not have accrued PTO or sick leave, the employer must pay the leave with new money and cannot advance or borrow future leave.

While not a requirement now, OSHA did express the possibility of expanding the requirement to smaller businesses. OSHA has initiated a 30-day comment period and is inviting comments on any aspect of this ETS and whether the ETS should become a final rule. Public comments will allow OSHA to gather information, diverse perspectives, and technical expertise to assist the agency in considering next steps. Additional information and the opportunity to participate is provided in OSHA’s Vaccination and Testing ETS: How You Can Participate.

Penalties
OSHA may fine an affected employer that does not comply with ETS requirements up to $13,653 for each violation. Employers that willfully and repeatedly violate the standard may be fined up to $136,532, although pending legislation would allow this cap to increase upwards of $700,000 if passed.

Can Employers Anticipate and End to the ETS Requirements?
OSHA anticipates this ETS will be in effect for a minimum of six-months from the date of publication in the Federal Register, November 5, 2021. OSHA will continue to closely monitor trends of COVID related infection and death as more of the workforce and general population become vaccinated and the pandemic continues to evolve.

Jacqueline C. Hawkins

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