The Wait is Over: OSHA ETS For Companies with 100+ Employees Released
The Occupational Safety and Health Administration (OSHA) has released the long-awaited Vaccination and Testing Emergency Temporary Standard (ETS) which requires businesses with 100 or more employees to mandate their employees get vaccinated or wear a mask and be subject to weekly testing. Here are the highlights:
- Employers are required to establish and implement a written mandatory vaccination policy OR an alternative policy allowing employees to choose to be fully vaccinated or be required to undergo weekly COVID-19 testing and wear face coverings. The policy must be implemented by December 5, 2021.
- All unvaccinated workers must begin wearing masks by December 5, 2021. Individuals must be fully vaccinated (if not granted a religious or medical exemption) by January 4, 2021. If an individual is not fully vaccinated by January 4, 2021, the individual must provide a negative COVID-19 test on a weekly basis.
- Companies are not required to pay for or provide the test, unless required under state or local laws or in labor union contracts. This may be a consideration for Pennsylvania employers where a state law requires employers to pay for any medical test if certain requirements are applicable.
- Employers are required to determine the vaccination status of each employee, obtain proof, and maintain the vaccination records.
- Employers are required to “support” vaccination by providing employees reasonable time, including up to four (4) hours of paid time, to receive each vaccine dose, and reasonable time and paid sick leave to recover from any side effects following each dose. Tellingly, the ETS does not define what a reasonable amount of time is at this juncture.
- The ETS requires employers to require employees to provide notice of a positive COVID-19 test, remove the employee from the workplace regardless of vaccination status, and keep the employee out of the workplace until they meet criteria for returning to work.
- Employers are required to provide employees with notification about the requirements of the ETS and workplace policies and procedures established to implement the ETS, a CDC document about vaccines, information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Employers must report COVID-19 fatalities and hospitalizations to OSHA.
- Of note, while the ETS does include vaccination exemption language for those with religious or medical reasons, it does not appear to include an exception for those who previously contracted COVID-19. Therefore, those individuals who previously had COVID-19 would either need to be vaccinated or comply with the unvaccinated requirements.
Additionally, the Centers for Medicare & Medicaid Services (https://public-inspection.federalregister.gov/2021-23831.pdf) issued it’s COVID-19 vaccine requirements which require all employees at Medicare and Medicaid-participating healthcare facilities to be vaccinated (unless granted a religious or medical exemption) by January 4, 2021.
A more detailed post will be available in the coming days. For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that effect your workplace, be sure to subscribe to our blog and follow us on social media.