On June 10, 2021, OSHA issued its long-awaited emergency temporary standard (ETS), which requires certain healthcare employers to implement a number of policies and procedures to protect their employees from COVID-19. Some provisions receiving the most attention are the requirements that covered employers provide (1) “reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination” and (2) paid leave of “up to $1,400 per week” to employees removed from the workplace after contracting COVID-19.

In a set of FAQs released with the ETS, OSHA explained that the amount of vaccination leave must include all time spent during work hours related to the vaccination appointment, including registration and travel. OSHA also established a presumption that “four hours of paid leave for each dose of the vaccine, as well as up to 16 additional hours of leave for any side effects of the dose(s) (or 8 hours per dose) . . . would be in compliance with this requirement.” Paid leave can be provided either “in the form of an employee’s accrued sick leave, if available, or in additional paid leave provided by the employer for this purpose.”

Employees who are removed from the workplace after contracting COVID-19 must receive “the same regular pay the employee would have received had the employee not been absent from work, up to $1,400 per week, until the employee meets the return to work criteria specified in [the ETS].” Employers with fewer than 500 employees are only required to pay the employees two-thirds of the regular rate of pay beginning on the third week of removal.

Employers with fewer than 500 employees may be able to take advantage of the American Rescue Plan’s tax credits for employers that pay sick and family leave from April 1, 2021 through September 30, 2021, including leave taken to receive a COVID-19 vaccination or recovery therefrom. Employers with more than 500 employees will be required to fund such requirements either through existing paid leave policies or a new allotment of paid time off.

There is some debate regarding whether the ETS’s paid leave requirements exceed the statutory authority provided by the OSH Act. While such argument could support a successful challenge, it will take considerable time for any lawsuit to make its way through the courts. In the meantime, the ETS is immediately effective upon covered employers.

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