Labor & Employment Alert: OSHA Issues its Emergency Temporary Standard for Vaccination and Testing for Employers with 100 or More Employees

The Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to implement a mandatory vaccination program for its employees. Or, as an alternative, adopt a program for employees to either get vaccinated or submit to weekly COVID-19 testing and wear a face covering at work. The ETS will be published in the Federal Register on November 5^th and employers will be required to comply with most provisions within 30-days of publication and the COVID-19 testing requirements within 60-days of publication.  What that means is that all unvaccinated workers must begin wearing masks by December 5^th and begin providing weekly negative COVID-19 tests beginning January 4, 2022.

Highlights of the ETS include:

• Employers will be required to implement and enforce a mandatory written vaccination policy or a written policy allowing employees to elect weekly COVID-19 testing along with face covering for unvaccinated employees.
• Employers must determine the vaccination status of all employees by obtaining acceptable proof and maintain records of each employee’s vaccination status.  A copy of an employee’s vaccination card will be considered acceptable proof.
• Employers will be required to allow employees four hours paid time off to get vaccinated during work hours for each dose and paid sick leave to recover from side effects of each dose.
• Employers must ensure that unvaccinated employees submit to weekly testing and provide proof of a negative test as well as ensure unvaccinated employees wear masks while working indoors.
• Employees are required to immediately report a positive COVID-19 test or diagnosis and employers are to immediately remove employees with a positive test or diagnosis, regardless of vaccination status.
• Employers are required to provide employees information about the requirements of the ETS, policies and procedures the employer is enacting to implement the ETS, and information about the safety and benefits of being vaccinated by providing each employee with a copy of the CDC publication “Key Things to Know About the COVID-19 Vaccine”. This information can be wrapped into the mandatory written policy referenced above.
• Employers are also required to report work-related COVID-19 deaths within 8 hours and hospitalizations within 24-hours to OSHA.
• Make certain that records relating to vaccinations and testing are available to employees and their representatives within 24-hours of the request.

Employers with more than 100 employees should assume they are covered by this ETS unless they are federal contractors or employees that provide healthcare services and support.  Those employees are covered by a different, more stringent, vaccination mandate.

Certain employees, however, are not covered by the ETS.  Specifically, employees that work remotely, employees that do not report to a workplace where other employees are present, or employees that work exclusively outdoors.

There is not a lot of time for employers to comply with the standard and employers are going to have a lot of questions about the ETS.  Fortunately, OSHA has published a very detailed FAQ page that can be found here.

It is expected that there will be several legal challenges to this ETS, but for now, employers should be working under the assumption that the ETS will go into effect, and they should take the necessary steps to begin complying with the standard.