On November 4, 2021, the U.S. Department of Labor’s OSHA issued mandatory standards requiring private companies with 100 or more employees to ensure their workers are vaccinated against COVID-19 or undergo weekly testing and wear a face covering at work. The Emergency Temporary Standard (ETS) will cover two-thirds of the nation’s private-sector workforce and is centered on addressing the “grave danger” that COVID-19 presents to workers.
Employers must comply with most requirements within 30 days of publication (providing time off for workers to get inoculated and ensuring those who aren’t vaccinated are wearing a mask – December 5th) and with testing requirements within 60 days of publication (workers must be fully vaccinated or submit to testing – January 4th). According to OSHA’s new requirements, workers are considered fully vaccinated if they have received two doses of the Pfizer-BioNTech or Moderna vaccines, or one dose of the Johnson & Johnson vaccine. A chart outlining compliance dates for all ETS requirements is available for view and download.
The ETS serves as a proposal for normal rulemaking for a final standard. Standards can last for six months after which they must be replaced by a permanent regulation. The OSHA rules are a major effort of President Biden’s push to use employer mandates to drive up vaccination totals nationally. OSHA estimates that 27 percent of covered employees (22.7 million) will be vaccinated based on employer policies under the ETS, or 72 percent of covered employees who are currently unvaccinated.
It is legal under OSHA’s authority to introduce a vaccine mandate and for its standards to preempt existing rules of state governments, except for states that have their own OSHA-approved workplace agencies. Those state agencies, which OSHA monitors, are required to enact a rule that is at least as effective as the OSHA rule. OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccinations, face coverings, or testing.
The ETS Requirements Include:
1. Employees Vaccinated by January 4th and Implement Required Testing For Unvaccinated Employees
All covered employers must ensure that any employees who have not received the required shots begin producing a verified negative test on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. (The ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements.)
2. Pay Employees For The Time It Takes To Get Vaccinated
All covered employers are required to provide paid time (reasonable time, including up to four 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). Employers may require employees to use paid sick leave benefits otherwise provided by the employer to offset these costs.
3. Determination Of Employee Vaccination Status
The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. The ETS does not require the employer to provide paid time off to any employee for removal as a result of the employee’s refusal to provide documentation of a COVID-19 test result.
4. Employees Not Covered
The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
5. Covid-19 Testing For Employees Who Are Not Fully Vaccinated
The ETS requires employers to 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 seven days before returning to work (if away from the workplace for a week or longer).
6. Face Coverings Required For Those Not Vaccinated
The ETS requires employers to 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. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (i.e., safety concerns).
7. Employee Notification To Employers Of A Positive Covid-19 Test And Removal
The ETS requires employers to (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19, (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and (3) keep removed employees out of the workplace until they meet criteria for returning to work.
8. Information To Be Provided To All Employees
Employers are to provide employees with the following information in an appropriate language and at a literary level for the employees: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document, “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
9. Employers Are To Report Covid-19 Fatalities And Hospitalizations To OSHA
Employers must report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.
10. Employer To Make Available Covid-19 Vaccination Records
Employers are required to make available for examination and copying an employee’s COVID -19 vaccine documentation and any COVID-19 test results to an employee and to anyone having written authorized consent of the employee. Employers are also required to make available to an employer, or an employer’s representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at the workplace.
ETS Court Challenges Ahead
The Emergency Temporary Standards mandated by OSHA will be challenged in the courts. The day after the ETS was announced, Missouri and ten other states sued to block the Biden Administration’s rule. It is anticipated that arguments will be raised that the federal government’s attempt to mandate vaccinations goes beyond its Constitutional authority and infringes on states’ police powers reserved by the Tenth Amendment. Claims will argue that OSHA lacks the statutory authority to issue the rule that goes beyond workplace safety and into public health policy.
Attorneys General in at least 24 states have threatened to sue in an effort to block the initiative. OSHA plans to have programmed or planned inspections, where agencies go into workplaces to check that the workplace is in compliance with the rules. Companies can be fined $136,532.00 for willful penalties and standard penalties are $13,653.00 for a single violation and will increase if there are multiple violations in the workplace.
Employees who are entitled to reasonable accommodations due to a disability or sincerely held religious belief that prevents them from becoming vaccinated are still required to be tested weekly. If testing for COVID-19 conflicts with an employee’s sincerely held religious belief, the employee may be entitled to an additional reasonable accommodation.
These federally mandated guidelines are complex and evolving. There are key compliance dates for implementation, information for employees and penalties for false statements and records, required reporting of COVID-19 fatalities and in-patient hospitalizations to OSHA, workers’ rights under COVID-19 vaccination and testing ETS, mandatory vaccination policy requirements, and COVID-19 vaccination testing and face covering policy consideration that companies must provide to its employees.
Pittsburgh Employment Attorneys
Employers with questions about implementing the ETS requirements or other employment matters are encouraged to contact Frank Botta for assistance. He can be reached at fbotta@lynchlaw-group.com or by calling 724.776.8000.
