OSHA Issues ETS for COVID-19 Vaccine Mandate

Miles & Stockbridge P.C.

After much anticipation, on November 4, 2021, the Occupational Safety and Health Administration (OSHA), issued its long-awaited Emergency Temporary Standard (ETS), requiring mandatory COVID-19 vaccination or weekly testing for private employers with 100 or more employees. Shortly after the ETS was issued, a lawsuit was filed to enjoin the enactment and enforcement of the ETS. The Fifth Circuit Court of Appeals ruled to temporarily enjoin the ETS. As the case proceeds employers should keep watch for updates. In the interim, we thought it was important to provide you with the terms of the ETS as it currently stands. As relayed in our October 25, 2021 blog post, the ETS was issued in response to President Biden’s Action Plan, announced on September 9, 2021. OSHA made clear that the ETS was issued “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” This theme of protecting the unvaccinated and encouraging vaccination, is woven throughout the ETS. While OSHA has the authority to require employers to bear the cost of implementing safety measures, and usually does, in this case OSHA took a different approach and required employers only to bear costs associated with vaccination. OSHA made clear that if an unvaccinated person chooses not to be vaccinated and instead chooses to participate in weekly testing, the employer is not responsible (under the ETS) for the onerous costs that could be associated with the weekly testing requirement, although a different result could be required under other laws or a collective bargaining agreement. We believe that OSHA is taking this position to strongly encourage employees to get vaccinated. With that being said, and now that the ETS has been made public, let us provide you with our thoughts and key areas that employers should be aware of.

  • Who Does the ETS Apply to? – All employers with 100 or more employees (without regard to full or part time status) are considered “covered employers.” The 100 or more employee requirement is a cumulative total, applicable across each company, regardless of the location of the company and the amount of employees in the individual locations. One distinction involves companies with franchise locations. Franchises may operate independently, and will only count toward the 100 or more employees, if the franchise owner owns more than one location. There are also other distinctions to calculating 100 or more employees, one notable one is that remote workers will count towards the 100 or more employee count, even though they are not required to be vaccinated or tested if they do not go to the workplace.
  • Who is not covered by the ETS? There are certain exceptions to the ETS vaccination requirement. For example, the requirement does not apply to those employees who work remotely. Additionally, those employees who work exclusively outdoors are not covered by the ETS, or those that work at a workplace with no other employees.
  • What is Required? – Covered employers under the ETS have a choice of either having a mandatory vaccination policy for all employees, or electing to have a testing option for those employees who choose not to be vaccinated. In either instance, covered employers should determine now, which path they would like to take because there are certain upcoming deadlines and requirements that will need to be met. For example, the ETS requires that each covered employer must “establish and implement a written mandatory vaccination policy,” whereby employees must be fully vaccinated by January 4, 2022. If a covered employer chooses not to mandate vaccinations, then it must have a policy in place requiring weekly COVID-19 testing of unvaccinated employees (beginning January 5, 2022), along with a requirement that those unvaccinated employees wear a mask within the workplace. Within the workplace applies to being indoors and when traveling in a vehicle occupied by another person for purposes of work.
  • When is Compliance Required? – Although all employees under the ETS must be vaccinated by January 4, 2022, covered employers must be in compliance with the paid-time provisions by December 5, 2021. Additionally, beginning December 5, 2021, all unvaccinated employees are required to wear a mask within the workplace, which means that employers will need to have collected vaccination status from employees by that date. While vaccination status is subject to the rules of confidentiality from disclosure for medical and health information, each employer must maintain a record and roster of each employee’s vaccination status. This recordkeeping requirement also extends to testing results. As long as the ETS is in existence, the employer must maintain a record of each test result provided by its employees.
  • Paid Time Off for Vaccination. – All covered employers must provide for up to 4 hours paid duty time for each of the required vaccination shots. This appears to be time that must be provided in addition to any paid time off granted to the employee. In addition to paid time to get vaccinated, covered employers must provide “reasonable” time off and paid sick leave for employees to recover from any side effects of the vaccine. It appears that employers may require the use of PTO or sick leave for this time, although if an employee has no available leave, the employer must still provide paid time off. While ETS is not specific on what “reasonable” is, it is anticipated that two days for employees to recover from any side effects of the vaccine may be deemed reasonable.
  • The Employee Choice will Cost – the Employee (maybe…) - OSHA has determined that it is not “appropriate” for the employer to bear the cost of testing, should the employee choose not to be vaccinated. Under the ETS the employee is now responsible for the cost of the weekly testing and for the cost of masks. However, covered employers may not be completely off the hook. Instead, covered employers need to take a close look at the requirements of state and local laws, or collective bargaining agreements to ultimately determine whether they will need to bear the cost for testing of unvaccinated employees.
  • Testing for the Unvaccinated – The ETS provides specific guidance as to what types of tests can be used for unvaccinated employees. Of note, employees are not allowed to use both self-administered and self-read tests, unless the test is administered in front of an employer or an authorized telehealth proctor.
  • Positive COVID-19 Test Result. – An employee is required to notify an employer of a positive COVID-19 test result immediately. The employer must immediately remove the employee from the workplace. A covered employer is also required to notify OSHA within 8 hours of learning of a work-related positive case, and within 24 hours of a hospitalization. Under the ETS, a covered employer is not required to provide paid time off for an employee who has tested positive or been diagnosed with COVID-19. However, as stated above, employers should be mindful of state or local laws, or collective bargaining agreements that may require the employer to provide paid time off.
  • What Now? – The ETS is effective 30 days from its issuance, or December 5, 2021, with the exception of the testing requirement which must be complied with within 60 days from the date of issuance. For those covered employers who have not already come up with a plan, now is the time to draft or revise any current written policies to reflect the specific requirements of the ETS.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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