Heyl Royster

OSHA Issues Covid-19 Vaccination and Testing ETS

Posted on November 5, 2021 at 10:00 AM by Katie Anderson, Brian Smith

On September 9, 2021, President Biden announced the White House’s plan for vaccine mandates for various categories of employees. One of the groups impacted was all employers with 100+ employees. President Biden announced that OSHA was the agency that would promulgate and issue final rules enforcing this mandate.

Yesterday, on November 4, 2021, OSHA finally released its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS establishes binding requirements for employees of large employers (i.e., those with more than 100+ employees). OSHA indicated that it believes these requirements to be both “economically and technologically feasible,” and also necessary to combat the danger of occupational exposure to COVID-19 faced by unvaccinated workers.

The ETS goes into effect Friday, November 5, 2021. Employers must comply with all requirements except testing within 30 days of the effective date and must implement testing for all unvaccinated employees within 60 days. The deadline for employees to receive their final dose of the vaccine is January 4, 2022.

Notably, the ETS preempts State and local laws. Specifically, OSHA intends for the ETS to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face-covering, or testing.

The ETS does not cover employees who do not report to a workplace where other individuals are present, employees while they are working from home or employees who work exclusively outdoors.

Some of the key requirements for employers under the ETS:

  • Employers must 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 not fully vaccinated to elect to test weekly for COVID-19 and wear a face covering while at work.
  • Employers must determine each employee’s vaccination status, obtain proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Employers must support vaccination by providing employees 4 hours of paid time to receive the vaccine, and also “reasonable time and paid sick leave” to recover from any side effects.
  • Employers must ensure that employees who are not vaccinated are tested for COVID-19 weekly. The ETS does not require employers to pay for the testing (although OSHA notes that there may be other laws, regulations, or collective bargaining agreements that require payment)
  • Reporting requirements for employees who test positive for COVID-19 and work-related COVID-19 fatalities.
  • Requires employers to provide information to its employees about the ETS, CDC information about the vaccine, and information on the penalties for supplying false information.

Employers not in compliance with the requirements face workplace inspections and penalties.

OSHA is seeking comment on the ETS before it becomes a final rule. OSHA also indicated it may revise or update the ETS as OSHA monitors trends in COVID-19 infections and deaths.

Though the current ETS applies to employers with 100+ employees, OSHA made it clear that it is looking to establish requirements for smaller employers. However, OSHA noted that it needed more time to determine whether smaller employers could implement the requirements without “undue disruption.” OSHA is seeking comment to help it make that determination. Heyl Royster will monitor these developments and provide updates as more information is known.

Additional information can be found at www.osha.gov/coronavirus.

It is anticipated that some employers and employees will file lawsuits challenging the validity and enforceability of the ETS. Heyl Royster will monitor these developments and provide updates as more information is known. We understand that the information outlined above likely raises questions specific to your situation. If you have questions, please contact Brian Smith or Katie Anderson.

Brian M. Smith
Employment & Labor Practice Group Chair

Katie H. Anderson
Healthcare Practice Group Chair

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