On November 4th OSHA released an Emergency Temporary Standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS requires most employers that have a total of 100 or more employees to either require all employees to be fully vaccinated against COVID-19 or be subjected to weekly testing and wearing a face covering at work. The highlights are set forth below.
Who is covered? All employers with 100 or more employees. Employees at all locations count. Part-time employees count. Independent contractors do not count.
Who is not covered? 1. Federal Contractors and Subcontractors covered under the “Mandatory Vaccination Executive Order”; 2. Healthcare providers who receive Medicare and/or Medicaid and are covered by the “CMS Mandatory Vaccination Rule”.
Are some employees exempt? Yes. The ETS does not apply to employees of covered employers : 1. Who do not report to a workplace where other employees or customers are present; 2. While working from home; 3. Who work exclusively outdoors.
Do the disability and religious exemptions still apply? Yes. Those employees who are legally entitled to a reasonable accommodation because of a disability (under the ADA) or a sincerely held religious belief (under Title VII) do not have to be vaccinated. Additionally, vaccination is not required for any employee for whom a vaccine is medically contraindicated or for whom medical necessity requires a delay in vaccination. The ETS provides that if an employee has a positive test result for, or diagnosis of, COVID-19, vaccination cannot be required for 90 days.
Do employers have to publish a policy? Yes, within 30 days from when the ETS was published. So, employers must have a policy by December 4th. OSHA has issued a form policy for employers to use.
When does vaccination have to be completed? By January 4, 2022. For employees who are getting a two dose vaccine (Pfizer or Moderna) the first shot must occur on or before December 4, 2021.
What records must covered employers maintain? Employers must ensure all employees who are not exempt are fully vaccinated. As part of fulfilling that requirement employers must maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination. Acceptable proof is a vaccination card, a record of immunization or a medical record. The employer must also maintain a roster of each employee’s vaccination status. These records and roster must be maintained as confidential medical records in accordance with federal law. These records must be preserved so long as the ETS is in effect.
Does the ETS provide for paid leave? Yes. Employers must provide up to 4 hours of paid time at the regular rate of pay, including travel time, for employees to get vaccinated. Employers must also provide reasonable time and paid sick leave to recover from side effects experienced from any vaccination.
Can employers require testing instead? Yes. Employers can elect to require weekly testing for all unvaccinated employees instead of vaccination. These employees must be tested at least once every seven days and provide documentation of the test result no later than the 7th day. If the employee does not comply with these requirements the employer must keep the employee removed from the workplace.
Who pays for the test? Employees must pay for the test. But employers can choose to do so. And a “do it yourself/at home” test result is only acceptable if it is conducted in the presence of the employer.
Do unvaccinated employees have to wear masks/face coverings? Yes, whenever they are around others in the workplace. An exception exists for eating and drinking.
What about employees who test positive? Employers must require employees to immediately notify them if they test positive or are diagnosed with COVID-19. These employees must be immediately removed from the workplace until they receive a negative NAAT test result and meet the CDC return to work criteria.
Are there other notification requirements? Yes. In addition to the policy employers must provide employees with the document entitled “Key Things To Know About COVID-19 Vaccines” and advise them of their rights to be free from discrimination for reporting a work related injury or illness and free from retaliation from making a complaint.
Are there OSHA reporting and record keeping requirements? Of course. All COVID-19 fatalaties must be reported to OSHA within 8 hours. Each COVID-19 hospitalization must be reported with 24 hours. And most records must be made available to OSHA for inspection by the end of the next business day.
Does the ETS preempt state law? Ye, if the state law is contrary to or requires less than the ETS. So if the Bill recently passed by the Tennessee General Assembly actually becomes law the provisions in it which pertain to employers will be moot.
The big unknown is whether the ETS will survive legal challenges. On Saturday, November 6th, the United States Court of Appeals for the 5th Circuit, which covers Louisiana, Texas and Mississippi, issued a temporary stay preventing the ETS from taking effect. The government has until 5p.m. on Monday, November 8th, to respond. The Order did not specify whether the stay is nationwide or applies only to the states under its jurisdiction. However, there are similar legal challenges pending in other courts, including the 6th Circuit Court of Appeals, which includes Tennessee.
In the meantime employers should prepare to comply with the ETS. While it might be enjoined or withdrawn, that has not yet happened and might not happen. As always, the failure to plan is a plan to fail.