U.S. Department of Labor Issues Emergency Rule on COVID-19 Vaccinations and Testing for Medium and Large Employers

Smith Gambrell Russell

On Friday, November 5, 2021, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) will issue an emergency temporary standard (“ETS”) detailing President Joe Biden’s directive that all employers with 100 or more employees require employees to be fully vaccinated against COVID-19 or to require non-vaccinated employees get tested weekly and wear face coverings in the workplace.

Covered employers. The ETS directs businesses with more than 100 employees to mandate vaccinations for their workforces, or have employees show a negative test for the virus at least weekly (and wear face coverings in the workplace). Notably, to determine whether the ETS applies to your business, employers must include all employees across all of their U.S. locations, regardless of where they perform their work. Part-time employees count towards the company total, but independent contractors do not.

Employer policy on vaccination. The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. The policy may provide for employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. The policy may also apply an exception for employees who do not report to a workplace where other individuals such as coworkers or customers are present or who work exclusively from home or outdoors.

Determination of employee vaccination status. The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

Employer support for employee vaccination. The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.

COVID-19 testing for employees who are not fully vaccinated. The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. Employers should note that the ETS does not supersede employers’ obligations under other laws or a collective bargaining agreement that may require employers to pay for COVID-19 tests. Employers must also maintain records of test results provided by employees.

Employee notification to employer of a positive COVID-19 test and removal. The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider; and (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Face coverings. The ETS requires that employees who are unvaccinated must wear face coverings (including masks or other forms of face coverings, where appropriate) while at work sites.

Information provided to employees. The ETS requires employers to provide employees the following: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Reporting COVID-19 fatalities and hospitalizations to OSHA. The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Availability of records. The ETS requires employers to make available for examination and copying to an employee, and to anyone having written authorized consent of that employee, the employee’s COVID-19 vaccine documentation and any COVID-19 test results. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

ETS deadlines. Employees are required to get fully vaccinated by January 4, 2022. Employers must provide employees paid time off to get vaccinated and ensure unvaccinated employees wear approved face coverings at work sites by December 5, 2021.

The Centers for Medicare and Medicaid Services (“CMS”) also issued an emergency regulation that requires health care workers at hospitals, nursing homes, and other facilities that participate in Medicare and Medicaid to be fully vaccinated by January 4, 2022, as well. This rule does not include the same weekly testing option that is included in OSHA’s ETS.

Relationship with existing laws or other regulatory guidance. The ETS and CMS rules preempt any contradictory state or local laws, including those that restrict an employer’s ability to impose vaccination, testing, or masking requirements. The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors or any workplace setting subject to the separate OSHA Healthcare ETS.

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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