**CLARIFICATION: If you do not have 100 or more employees nationwide, this Alert is not applicable to your practice.**
On November 4th, Federal OSHA published its vaccine or test Emergency Temporary Standard (ETS). You may read the entire ETS by clicking here.
NOTE: Lawsuits in multiple states were immediately filed. By Saturday, November 6th, the Fifth Circuit Court of Appeals had stayed the ETS thereby temporarily blocking it. As a result, the ETS’ future is very much up in the air. There will be a lot of legal proceedings over the next few weeks and likely several ups and downs. Where this ultimately will land is unknown. We will keep you updated as we can. For now, plan as though it will take effect and be enforced.
Here are some key aspects of the ETS:
This Standard took effect immediately (i.e., 11/04/21).
Employers have until December 6, 2021 to comply with all requirements except testing unvaccinated workers. Compliance for testing unvaccinated workers is required by January 4, 2022.
The ETS will remain in effect for 6 months unless updated or replaced by a permanent standard.
Penalties: up to $13,653.00 per violation (more for willful or egregious failures to comply).
The ETS is applicable to all employers subject to Federal OSHA with 100+ employees, which is to be measured on a company-wide basis (i.e., across all U.S. locations). It does not apply to:
- Employers that are already covered by the Safer Federal Workforce Task Force COVID-19 vaccine mandate for federal contractors and subcontractors
- Those employers covered by the OSHA’s COVID-19 Healthcare Emergency Temporary Standard.
Note: Employers not covered by federal OSHA will need to rely on their state’s standards. States have 30-days to either adopt the federal ETS or issue an alternative standard that is the equivalent.
Here are the states not covered by federal OSHA: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.
Furthermore, 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 working from home 100% of the time
- Employees who work exclusively outdoors
1) Create a COVID-19 vaccination policy. Employers may choose one of two options for applying the ETS standard:
Develop, implement, and enforce a mandatory COVID-19 vaccination policy requiring employees to be fully vaccinated against COVID-19.
Develop, implement, and enforce a policy that allows employees to choose between being fully vaccinated or be tested at least weekly and wear a face covering.
2) Employers must 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.
3) Employers must provide up to four (4) hours of paid time off for employees to receive each vaccination dose, including travel time, as well as reasonable time and paid sick leave to recover from side effects experienced from the vaccine doses. This must be paid at the employee’s regular rate of pay.
4) Employees are required to promptly notify employers when they receive a positive COVID-19 test or are otherwise diagnosed with COVID-19. Upon notification, employers must remove the employee from the workplace, regardless of vaccination status. These removed employees must remain out of the workplace until they meet CDC criteria for returning to work. If an employee does not provide documentation of a COVID-19 test result, the employer must keep that employee removed from the workplace until the employee provides a test result.
5) Employers must provide employees the following in a language and at a literacy level employees will understand: 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.
6) Employers must 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.
7) By the end of the next business day after a request is made, employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. In addition, by the end of the next business day after a request is made, employers are required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Here’s a roadmap for preparing for the ETS:
- Develop a policy. OSHA provided 2 sample mandatory vaccine policies for employers to choose from. You may find them here and here.
- Educate employees. There is wealth of information on OSHA’s website here.
- Determine your employees’ vaccination status, obtain acceptable proof, and maintain records.
- Provide paid time off for any employee getting the vaccine, as noted above.
- Set up a system for tracking COVID-19 testing.
- Consider buying face coverings for those who are required to wear them.