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Tuesday, November 9, 2021

OSHA Issues Emergency Temporary Standard on COVID-19 Vaccination and Testing

On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (“ETS”) aimed at minimizing the risk of COVID-19 transmission in the workplace by mandating COVID-19 vaccinations or testing for all employers with 100 or more employees effective November 5, 2021, subject to the compliance deadlines described below. The entire ETS can be found here with additional information like a summary, fact sheet, FAQs, and policy templates (here). OSHA expressly states that the ETS’s intent is to preempt and supersede any State or local requirements that attempt to ban or limit an employer from mandating vaccination, face coverings, or testing. This update will summarize key requirements of the ETS.

Covered Employers. The ETS applies to all private employers with 100 or more employees company­wide, i.e., not by location, based on the number of employees (including part-time and seasonal workers) on November 5, 2021. If an employer is not initially covered, but later employs 100 or more employees, the employer is then covered. Also, even if an employer has 100 employees on November 5 and the number of employees falls below 100, the employer remains covered by the ETS. Employers excluded from the ETS include federal contractor and subcontractors covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance, employers who provide healthcare services and are subject to the Healthcare ETS, and public employers in States (like Missouri) that do not have a federally-approved State Plan in place. The ETS requirements do not apply to covered employees who do not come to the workplace, work from home, or work exclusively outdoors.

Vaccination, Testing, and Face Covering Requirements. The ETS requires covered employers to implement and enforce a mandatory COVID-19 vaccination policy, but also provides that covered employers can elect to implement and enforce a policy permitting employees who are not fully vaccinated to undergo weekly testing and to wear a face covering while at work. Covered employers are required to: determine the vaccination status of all employees; collect proof of vaccination and maintain such records (such as the COVID-19 vaccination record card or other immunization or medical records); and maintain a roster of each employee’s vaccination status. This information must be kept confidential. Covered employers must give employees paid time off for up to 4 hours to receive a vaccination and allow a reasonable amount of paid sick leave for employees who might suffer from side effects. If the employer elects to permit unvaccinated employees to undergo testing, the testing must occur on a weekly basis (if the employee is in the workplace at least once a week) or within 7 days before returning to the workplace (if the employee is away from the workplace for a week or longer). A covered employer is not required to pay for any of these employees’ testing costs unless required by other laws, regulations, or the terms of a labor agreement. Testing is required even if the employee has a reasonable accommodation for not being vaccinated due to a disability or sincerely-held religious belief. Covered employees must further require employees who test positive for or are diagnosed with COVID-19 to promptly notify the employer, in which case the employer must immediately remove the employee from the workplace until the employee meets the criteria to return to work. Finally, the ETS requires covered employers to ensure that unvaccinated employees wear face coverings while indoors or in a vehicle with another person. Covered employers cannot prevent any employee from wearing a face covering, unless doing so would create a safety hazard.

Information to Employees. The ETS requires covered employers to provide certain information to employees in understandable language: (1) information about the ETS requirements and the employer’s policies and procedures implementing the ETS; (2) the CDC’s “Key Things to Know About COVID-19 Vaccines”; (3) protections against retaliation and discrimination; and (4) criminal penalties for knowingly supplying false statements or documents.

Compliance Deadlines. Covered employers must comply with the majority major requirements of the ETS, including having a vaccination policy, by December 5, 2021. Employees of covered employers must be fully vaccinated or must start weekly testing, if the employer adopts the testing option, by January 4, 2022. Employees of health care providers receiving Medicare or Medicaid funds must be vaccinated by January 4, 2022, because such employers do not have the option to provide testing in lieu of vaccination, unless as part of a disability or religious accommodation.

The ETS is already being challenged in the federal courts, and it is possible that the enforcement of the ETS could be enjoined or delayed. However, we recommend that covered employers promptly develop policies and procedures to meet the ETS’s requirements due to the short timeframe for compliance.

As always, the foregoing is for informational purposes only, does not constitute legal advice regarding any particular situation, and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Kevin A. Sullivan and Charles S. Elbert.

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