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  • Stephanie B. Hoffmann

OSHA’s Emergency Temporary Standard Released

Updated: Nov 9, 2021

On September 9, 2021, President Joe Biden announced a plan directing the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) aimed at reducing the spread of COVID-19. On November 4, 2021, OSHA released the full text of the final rule, including the basis for its authority to issue the ETS. The rule sets a January 4, 2022, deadline for compliance, although employers must update their policies with COVID vaccine mandate for 100+ employee workplaces by December 4, 2021.

The rule applies to all employers who have 100 or more employees, company-wide, during the period that the ETS is in effect. An employer may alternatively permit employees to choose between mandatory vaccination or mandatory weekly testing and face coverings. Federal employees/contractors will also be required to vaccinate with no option for weekly testing.

Employees with a disability or a sincerely held religious belief that prevents them from getting vaccinated are exempt from the requirement to vaccinate. Employees with accommodations will still be subjected to weekly testing and wearing a face mask at the workplace. Employees who do not report to a workplace where people are present, work 100% remotely, or 100% outdoors may also be exempt at the discretion of the employer.

Employers are not required to pay for the cost for weekly testing unless otherwise required by law or collective bargaining agreement. The COVID-19 testing may be through a medical professional, another authorized testing program, or administered by an employer. The test can include home or on-site tests; however, the tests cannot be self-administered or self-read unless observed by an employer or authorized telehealth proctor. An employer cannot require any employee to get tested within 90-days of contracting COVID-19.

Keep in mind, there may be disparate impact implications for individuals with accommodations if employees are required to bear the costs of testing. Additionally, there may be wage and hour issues if the testing is done, and unpaid, within work hours.

An employer is also subject to recordkeeping requirements. An employer must keep a roster of each employee’s vaccination status and acceptable proof of vaccination, such as records of immunization or a copy of a vaccine card. The proof must be maintained as part of the employee’s medical records. An employer must also keep track of the aggregate number of employees vaccinated compared to the total number of employees.

For employers, work-related COVID-19 fatalities and hospitalizations are subject to the same OSHA reporting requirements as other workplace accidents (i.e., reported within 8 hours of an employer learning of a fatality, 24 hours of the employer learning of a hospitalization); however, an employer must report any COVID-19 related fatality or hospitalization regardless of how long it occurred after a workplace exposure.

Upon a request, the employer must make available to an employee their own vaccination documentation, test results, and the aggregate number of fully vaccinated employees compared to the total number of employees at that workplace. OSHA may require the same information and copies of the employer’s policy(ies) regarding vaccines.

Employees must be provided information related to the COVID-19 vaccination or weekly testing requirements including (1) policies and procedures—such as temporary suspension policies, mandatory face covering, and testing procedures—both generally and as applied to new employees; (2) information on the benefits and efficacy of vaccination provided in “Key Things to Know About COVID-19 Vaccines,” available here; (3) anti-retaliation language about reporting workplace violations; and (4) the penalties for knowingly supplying false information. Sample policies can be found on OSHA’s website.

Employees must also be provided up to 4 hours of paid leave, including travel time, to receive a vaccine and paid time off to recover from any side effects of the vaccine. However, an employer may require employees to use accrued leave, if any, to recover from the side effects of the vaccine.

If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, at (585) 258-2814.

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