Today the U.S. Occupational Safety and Health Administration (OSHA) released its long-anticipated emergency temporary standard (ETS) governing vaccination in the workplace. OSHA published both a summary of the ETS and a fact sheet. This alert covers the nuts and bolts of the ETS. In the coming days we look forward to publishing further analysis of the ETS and the potential and anticipated challenges it faces.
The bottom-line takeaway from the ETS is that all covered employers will need to require their employees to either be fully vaccinated for COVID-19 or submit to weekly testing. The first compliance deadline is December 5, 2021. Weekly testing requirements for employees who are not vaccinated must be met by January 4, 2022.
- Who is covered? Private employers with 100 or more employees across all U.S. locations are covered, including remote and part-time employees.
- Are any employees exempt from the ETS? Employees who do not report to a workplace in which other individuals are present (i.e., are permanently remote) and employees who work exclusively outdoors do not need to comply with the ETS. Employees also need not comply with the weekly testing requirements while they work from home. Employees covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or OSHA’s previously issued emergency standard governing healthcare workers must comply with those standards rather than the ETS.
- What policy must employers enact? Employers must create and enforce a policy that either (1) mandates COVID-19 vaccines or (2) gives employees the choice to either get vaccinated or be tested weekly and wear a face covering while at work.
- What is the testing option? For employers who choose to permit employees to be tested in lieu of vaccination, unvaccinated employees generally must be tested at least weekly (if the employee is in the workplace at least once a week) or within seven days before returning to work (if the employee is away from the workplace for a week or longer). Any Food and Drug Administration-approved or authorized test may be used, except that “at-home” tests that are both self-administered and self-read do not qualify.
- Do employers have to pay for tests? No. Employers may choose, but are not required, to pay for COVID-19 tests for unvaccinated employees (unless required to do so by local law). If testing is provided as a reasonable accommodation, the employer should bear the cost of the testing.
- What about reasonable accommodations? Employees may be entitled to a reasonable accommodation if an employee cannot be vaccinated and/or wear a face covering because of a disability, as defined in the Americans with Disabilities Act, or if complying with the employer’s vaccination, testing, and/or mask policy would conflict with an employee’s sincerely held religious belief. Requests for reasonable accommodations should be evaluated on a case-by-case basis.
- What are other requirements the emergency standard imposes on employers?
- Paid time off. Employers must give employees up to four hours of paid time for each primary vaccination dose — as well as reasonable time and paid sick leave to recover from any side effects experienced after each dose.
- Recordkeeping. Employers must determine and keep records documenting each employee’s vaccination status, secure proof of vaccination, and keep a roster that compiles this information.
- Provide employees with information. Employers must provide employees with information about (1) the requirements of the ETS; (2) the employer’s policies and procedures for implementing the ETS; (3) the benefits, efficacy, and safety of the vaccines (including by providing a Centers for Disease Control and Prevention document — “Key Things to Know About COVID-19 Vaccines”); (4) protection against discrimination and retaliation; and (5) criminal penalties for supplying false documents or information.
- Masks. Employers must make sure that unvaccinated employees wear a face covering while they are indoors in the workplace or occupy a vehicle with another person for work purposes, except in limited circumstances. Employers also cannot prevent any employee from voluntarily choosing to wear a mask, unless wearing one itself creates a serious workplace hazard.
- Sick employees. Employers must require employees to notify them promptly when they receive a positive test or are otherwise diagnosed with COVID-19 and must take steps to remove such employees from the workplace until return-to-work criteria are met.
- What if state or local law contradicts the emergency standard? The ETS states that it preempts inconsistent state or local laws, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing. We anticipate that this is an issue that will play out in court, among other potential challenges.
- What other considerations should employers keep in mind? Employers with employees covered by collective bargaining agreements should consult with counsel on how to comply with obligations under those agreements.
- By when must employers comply? By December 5, 2021, employers must be in compliance with all requirements except for the testing requirements. Weekly testing for employees who are not vaccinated must be implemented by January 4, 2022. Employees who have completed the entire primary vaccination by January 4, 2022, do not have to be tested, even if they are not yet 14 days postvaccination.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
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