Vaccine Law Client Act : November 2021 # 2

Shook, Hardy & Bacon L.L.P.

OSHA’s Emergency Temporary Standard for Private Employers

On November 5, OSHA released its long-awaited Emergency Temporary Standard (ETS) for employers with 100 or more employees. While the standard is comprehensive, below are highlights for employers to consider:

  • For purposes of counting the number of employees, part-time and full-time employees, as well as those working remotely or at multiple sites, count toward the 100-employee threshold. Independent contractors, employees of a franchisee in a typical franchisor-franchisee relationship, or workers placed by a staffing agency do not count.
  • The ETS does not apply to federal contractors or healthcare employers, both of which are subject to different requirements.
  • Although the deadline to comply with the vaccination mandate is January 4, 2022, employers must develop a policy and require all unvaccinated employees to wear masks by December 6, 2021.
  • “Fully-vaccinated” refers to a person who is two weeks post-vaccine (either the single-dose vaccine or the second dose of a two-dose vaccine); however, the ETS specifies that employees who are vaccinated by January 4 are not required to undergo testing, even if they are not two weeks post-vaccine on January 4.
  • Unlike the rule for federal contractors, the ETS allows employees who do not want to get vaccinated to (1) undergo COVID-19 testing at least once every seven days (or within seven days prior to reporting to a workplace where other employees are present if the employee was working remotely), and (2) and to wear a mask at all times while at work. New hires who are not fully vaccinated must present a COVID-19 test within seven days prior to reporting to the workplace.
  • Employers must provide up to four hours of paid time off for workers to get each vaccine dose and a reasonable amount of paid time off to recover from any side effects.
  • Employers are not required to provide paid time off for employees who test positive for COVID-19 and are removed from the workplace, unless otherwise required by other law, regulation or any collective bargaining agreement.
  • Employees who have previously been infected with COVID-19 must still get vaccinated; however, if an employee has a confirmed COVID-19 diagnosis and is not vaccinated, the testing requirements are suspended for 90 days following a positive COVID-19 test or diagnosis.
  • Employers must maintain records of each employee’s vaccination status (including proof of vaccination for employees who are partially or fully vaccinated) and testing results, as well as maintain a roster of each employee’s vaccination status should OSHA require documentation of an employer’s compliance with the ETS.
  • The vaccination records, test results and roster of employees’ vaccination status are considered employee medical records and must be treated as confidential records. Due to the temporary nature of this standard, OSHA requires that employers maintain proof of these records only as long as the ETS is in effect. This is different from the time period of maintaining an employee’s medical records under federal law.
  • Employers are not required to pay for employees’ COVID-19 testing, unless otherwise required by other law, regulation or any collective bargaining agreement.

The ETS stands as drafted for six months, unless OSHA modifies any of its provisions. After six months, it must be replaced by a permanent OSHA standard.

Finally, OSHA is considering what vaccination requirements, if any, it should mandate for employers with fewer than 100 employees.

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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