Several weeks ago, President Biden announced a new plan to vaccinate U.S. workers in an ongoing attempt to combat the Covid-19 pandemic. Under the new plan, large employers will have to require that their workers get Covid-19 vaccines or undergo at least weekly testing. The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) to implement the Biden Administration’s plan. The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace.
The rule covers all employers with a total of 100 or more employees with few exceptions. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.
Who is impacted by the ETS?
- Private employers with 100 or more employees firm- or corporate-wide.
- In states with OSHA-approved State Plans, state and local-government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements.
UPDATE: The EEOC has provided further information for employers to clarify how to implement vaccine requirements without infringing on employees’ civil rights under Title VII and the Americans with Disabilities Act (ADA). Title VII and ADA require that employees must inform their employer if they are seeking an exemption or accommodation to a vaccine requirement due to a sincerely held religious belief or practice, but it does not require employers to protect employees’ social, political, economic or personal preferences. Further, employers who can demonstrate “undue hardship” need not accommodate employees’ requests for religious accommodation. For more information, please click to read EEOC Issues COVID-19 Technical Assistance.
Who is not impacted by the ETS?
- Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors
- Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502).
- Workplaces of employers who have fewer than 100 employees in total.
- Public employers in states without State Plans.
There are exemptions to the ETS. Employees of an employer covered by the ETS do not need to adhere to the provisions of this ETS if they meet the following criteria:
- Employees who do not report to a workplace where other individuals are present.
- Employees while working from home.
- Employees who work exclusively outdoors.
The ETS requires employers to:
- Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
- 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 7 days before returning to work (if away from the workplace for a week or longer).
- Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
- Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
- Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
- Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
- Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.
The ETS’s Effective Date
Employers must comply with most provisions by 30 days after the date of publication in the Federal Register. In addition, employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register. Read the full text of the ETS at: http://www.osha.gov/coronavirus/ets2.
The ETS is expected to be published in the Federal Register on Friday, November 5, 2021.
Johnson & Bell’s Employment Attorneys are available to answer questions about this development and how it might affect your workplace. Please contact Genevieve M. LeFevour, Christopher J. Carlos or Caroline K. Vickrey with questions.