On November 5, 2021, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) that sets COVID-19 vaccination and safety standards for private employers with 100 or more employees. The ETS creates new obligations for employers, new rights for employees, and generally requires compliance within thirty days. Here are ten key issues for employers to consider concerning the ETS:
1. The time for compliance is very short.
- Covered employers must comply with the ETS by December 5, 2021, and testing for employees who are not fully vaccinated must be completed by January 4, 2022.
2. The definition of covered employers is very broad.
- The ETS applies to all private sector employers with more than 100 employees (except those workplaces already subject to the federal contractor requirement or CMS rule).
- To determine if an employer has 100 employees, the employer must count all employees across all locations, including employees who work at offsite locations, work remotely, and work part-time. If an employer hires seasonal employees, they can push the employer over the 100-employee threshold.
3. The ETS covers public sector employers in certain states.
- States operating an OSHA-approved state plan covering state and local government workers—this includes Connecticut, New York, and New Jersey—must:
- Adopt this ETS or an ETS that is at least as effective as this ETS; and
- Notify OSHA within 15 days of what it will do, and then adopt such an ETS within 30 days of passage of this ETS.
- Public sector employers’ compliance deadlines will run from the date of adoption of their State’s ETS.
4. Covered employers have two options to comply with the ETS.
- If the covered employer already has a mandatory vaccine policy that complies with the ETS, nothing further is required.
- If not, the covered employer MUST either (1) institute a mandatory policy on vaccination OR (2) must enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
5. Even if you have a mandatory policy, some employees will be exempt.
- Employees who may be exempt include:
- Employees who do not report to a workplace or work remotely, and employees who work exclusively outdoors;
- Employees with a reasonable accommodation due to a disability or sincerely held religious belief; and/or
- Employees who cannot be vaccinated due to medical reasons.
6. Employees get new leave rights under the ETS.
- Employers must provide up to four hours paid time off, including travel time, at the employee’s regular rate of pay for an employee to be vaccinated; and
- Employers must provide “reasonable” time and paid sick leave for employees to recover from any side effects following the vaccine.
7. Employers have new obligations under the ETS.
- Ensure unvaccinated employees wear appropriate face coverings in the workplace;
- Ensure unvaccinated employees get tested once every seven days regardless of the individual’s work schedule, and provide documentation of results; and
- Employers are NOT required to pay for testing costs.
- Report work-related COVID-19 hospitalizations and fatalities to OSHA.
8. The ETS sets a floor for face covering requirements.
- Unvaccinated employees must wear face coverings indoors and in crowded outdoor areas.
- Fully vaccinated employees are not required to wear a face covering; however, it is encouraged, especially indoors.
- Fully vaccinated employees may be required to wear face coverings indoors by state or local governments, or an employer’s own policy.
- Employees are not required to wear a face covering in a closed office, for a limited time while eating or drinking, for identification reasons, or when wearing a respirator or face mask as defined in the standard.
9. Employers have new notification requirements.
- Employers must inform all employees in easy-to-understand language and format about numerous topics related to the ETS, including the employer’s policy; information about the efficacy, safety, and benefits of vaccination (can rely on linked CDC document); prohibitions on retaliation; and prohibitions on making a false statement (e.g. knowingly providing false information regarding vaccination status or test results).
- Employers have discretion and flexibility as to how they provide this information to employees (e.g. mass email, posting in the office, or printed materials).
- OSHA emphasizes that this is not intended to be burdensome for employers.
10. The ETS incorporates penalties for non-compliance.
- The ETS does not contain any specific penalty provisions or fines for non-compliance.
- OSHA has indicated, however, that it will enforce the ETS through its standard inspection and investigation process, like it does with other workplace-related policies.
- OSHA’s existing penalties are $13,653 per violation, and $132,532 for willful or repeated violations.
Employers must determine whether they are covered by the ETS, if they are already in compliance, and, if not, what steps they need to take to become compliant. OSHA provides helpful information relating to implementing these policies in the FAQs on its website, and employers may need to consult their employment counsel for more information relevant to their specific workplace.