The OSHA Emergency Temporary Standards (ETS) regarding mandatory vaccinations and testing for all employers of 100 or more employees was announced on November 4, 2021, although it will not be officially published until November 5, 2021. Some of the basic provisions of the ETS are as follows:
- All employers with at least 100 employees, firm or corporate-wide, are covered. If a company has multiple locations with an aggregate total of 100 or more employees, and even if each or some of the individual locations have fewer than 100 employees, the company is still covered because the 100-person minimum is measured company-wide.
- Employees not covered by the requirements. Employees who are the sole worker in a location, who are working entirely from home, or who work exclusively outdoors, are not covered by the requirements.
- Effective Dates:
- December 5. All requirements, other than testing for employees who have not completed their primary vaccination doses.
- January 4. Testing for employees who have not received all doses required for primary vaccination.
- Required Employer Policies. All covered employers must develop, implement, and enforce a mandatory vaccination policy, or establish, implement, and enforce a policy allowing employees that are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace at all times. This standard is not either to test or wear a face covering; rather, unvaccinated employees are required to test weekly and wear a face covering at all times in the workplace.
- Verification of Employee Vaccination Status and Recordkeeping. Employers must determine the vaccination status of each employee, obtain acceptable proof of the vaccination, maintain records of each employee’s vaccination, and maintain a roster of each employee’s vaccination status.
- Paid Time Off to Obtain Vaccines. Employers must pay employees up to four (4) 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. Every employee who is not fully vaccinated must be tested at least one time weekly, or within 7 days before returning to the workplace if the employee was away from the workplace for a week or longer. The rule does NOT require the employer to pay for the cost of the testing. Employers must retain records of the weekly COVID-19 tests.
- Employees Must Notify Employer of a Positive Test. Employers must:
- require the employee to provide notice when they receive a positive COVID-19 test or are otherwise diagnosed with COVID-19;
- immediately remove the employee from the workplace, regardless of the vaccination status if they receive a positive COVID-19 test or were diagnosed with COVID-19 by a healthcare provider; and
- keep employees out of the workplace until they meet CDC criteria for returning to work.
- Face Coverings. Employers must ensure that each employee that is not fully vaccinated wear a face covering at all times indoors, or when occupying a vehicle with another person for work purposes. One exception is if wearing a facemask creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).
- Information Which Must be Provided to Employees. Employers must provide employees the following information:
- Information about the requirements of the ETS and workplace policies and procedures established by the company to implement the ETS;
- The CDC document titled “Key things to know about COVID-19 Vaccines.”
- Information about protections against retaliation and discrimination.
- Information about laws that provide criminal penalties for knowingly supplying false statements or documentation regarding vaccination status and weekly testing.
- Reporting COVID-19 Fatalities and Hospitalizations. The rule requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 inpatient hospitalizations within 24 hours of learning about the hospitalization.
- Records Available to Employees. Employers are required to make available to an employee, upon request, the aggregate number of fully vaccinated employees at a workplace, along with the total number of employees at the workplace. In addition, upon an employee request, the employer must make available to an employee a copy of the employee’s vaccine documentation and any COVID-19 test results for that employee.
- Penalties for Not Complying with the ETS. The current penalties for not complying with the ETS are potentially $13,600 per day, and up to 10 times that amount ($136,000) for repeat violations.
While we do expect many challenges to this emergency temporary standard, unless and until those challenges are successful, this ETS is an OSHA standard that is currently in effect.
There will be many questions and issues that will need to be addressed regarding this ETS and its implementation. However, we wanted to get basic information out to our clients as soon as possible.
If you have any questions, please do not hesitate to contact Karen Soehnlen McQueen (firstname.lastname@example.org) or Michael J. Bogdan (email@example.com) or any of the attorneys at Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. at 330.497.0700.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.