OSHA Publishes Emergency Temporary Standard on COVID-19 Vaccination and TestingNovember 4, 2021
Today the Occupational Safety and Health Administration (“OSHA”) announced an Emergency Temporary Standard (“ETS”) on COVID-19 vaccination and testing, with the intention of protecting workers from the risk of contracting COVID-19 at work. The ETS will become effective upon its publication in the Federal Register on November 5, 2021.
Mandatory Vaccination or Testing Policies Required
Under the ETS, private employers with 100 or more employees must develop, implement, and enforce a mandatory COVID-19 vaccination policy. The policy must require primary vaccination (i.e., receiving one dose of a one-dose vaccine, or two doses of a two-dose vaccine) of all employees who report to a workplace, other than those employees who fall into one of three categories: those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. The ETS does not offer any exemptions to the vaccination requirement for those who have acquired a “natural immunity” by previously having COVID-19. Under the ETS, in lieu of a mandatory vaccination policy, employers may instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated, or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
Employers who have already implemented vaccination policies, even if mandatory, will likely need to update their policies in order to comply with the ETS.
Employers Must Determine Employee Vaccination Status and Maintain Vaccination Records
The ETS requires employers to determine the primary vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. The records and roster required by the ETS are considered to be employee medical records and must be maintained as such. The ETS does not require employers to track employees’ receipt of booster shots or to provide paid time or paid sick leave in connection with booster shots.
Paid Leave Requirements for Vaccination and Recovery from Side Effects
Employers are also required to support primary vaccination by providing 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.
- With respect to paid time for vaccination, employers may not require employees to use personal or sick time to get vaccinated; this leave cannot be offset by any other leave the employee has accrued.
- With respect to time and paid sick leave to recover from side effects, although the standard does not specify the amount of paid sick leave that an employer is required to provide, OSHA advises that an employer would be in compliance if it makes available up to two days of paid sick leave per primary vaccination dose for side effects. An employer may require employees to use accrued paid sick leave when recovering from side effects.
Unvaccinated Employees & Testing Procedures
Employers must ensure that each employee who is not fully vaccinated is (i) tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven (7) days before returning to work (if away from the workplace for a week or longer) and (ii) wears a face covering when indoors or when occupying a vehicle with another person for work purposes. If an employee does not provide the result of a COVID-19 test as required by the ETS, the employer must keep the employee removed from the workplace until the employee provides a test result.
The ETS does not require employers to pay for any costs associated with testing, however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Employee Notice of Positive Test or Diagnosis and Exclusion from Workplace
Pursuant to the ETS, all employers must require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and remove those employees from the workplace, regardless of vaccination status, until they meet required criteria for returning to the workplace. Specifically, employees who test positive for COVID-19 or receive a COVID-19 diagnosis may return to work after (i) receiving a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; (ii) meeting the return to work criteria in the Center for Disease Control and Prevention’s “Isolation Guidance”; or (iii) receiving a recommendation to return to work from a licensed healthcare provider.
Employers do not need to provide paid time off to employees due to such removal (unless otherwise required by applicable law), although employers should allow their employees to make use of any accrued leave, such as accrued sick or vacation leave.
Additional Compliance Requirements
The ETS requires that employers notify each employee, in a language and literacy level the employee understands, about the requirements of the ETS; vaccine efficacy; safety, and the benefits of being vaccinated; protections against retaliation and discrimination for engaging in activities protected by OSHA statute or regulation; and laws that provide for criminal penalties for knowingly supplying false statements or documents. Employers may provide this information using any effective methods that are typically used in their workplaces, such as through email, printed fact sheets, or during team meetings. The ETS does not contain any formal training requirements.
The ETS also requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
Effective Date and Enforcement
Employers must comply with all requirements, other than testing for employees who have not completed their entire primary vaccination dose(s), within thirty (30) days of publication. Employers must comply with testing for employees who have not received all doses required for a primary vaccination within sixty (60) days. Pursuant to OSHA’s enforcement authority, it may impose civil penalties against employers for each protective requirement of the ETS that they fail to implement.
There is no set end date for the ETS, but OSHA anticipates that the ETS will be in effect for six months from the date of publication.
A Fact Sheet and FAQ published by OSHA can be found here:
The ETS is available at the OSHA website here: https://www.osha.gov/coronavirus/ets2.
Please contact a member of Herrick’s Employment Group with any questions.
Carol M. Goodman at +1 212 592 1465 or [email protected]
John H. Chun at +1 212 592 1546 or [email protected]
K. Heather Robinson at +1 973 274 2006 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]
© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.