Labor & Employment Blog

The Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) for COVID-19 Vaccination and Testing on November 3, 2021, which applies to most employers with 100 or more employees. OSHA may issue an ETS when it determines workers are in grave danger due to exposure to toxic substances, agents, or new hazards.

What does the ETS require?

Covered employers are required to implement a mandatory vaccination policy. Alternatively, employers may implement a policy providing all employees the option to be fully vaccinated or to undergo regular testing (at least once a week) and use face coverings in the workplace. Additionally, employers are required to remove all workers (regardless of vaccination status) who test positive for COVID-19 or who are diagnosed with COVID-19 from the workplace until they meet criteria to return to work.

Do employers need to keep track of vaccinations and testing?

Yes. Employers are required to maintain employees’ COVID-19 vaccination and test records and a roster of each employee’s vaccination status. Information about an employee’s vaccination status, vaccination records, and test results is considered medical information under the ADA that employers must keep confidential and separate from an employee’s personnel file.

What about state or local laws?

The ETS is intended to preempt state and local laws relating to the same issues, including any state or local requirements that ban or limit an employer from requiring vaccination, face coverings, or testing.

Do employers need to provide paid time off?

For employees who take the vaccine, employers are required to provide employees with “reasonable time,” including up to four hours of paid time off, to obtain each vaccination dose and “reasonable time and paid sick leave” to recover from any side effects after each dose.

What information must employers provide to their workers?

Employers must inform employees about: (1) the requirements of the ETS; (2) the workplace policies and procedures established to implement the ETS; (3) the CDC document titled “Key Things to Know About COVID-19 Vaccines”; (4) OSHA protections against retaliation and discrimination; and (5) the laws that provide for criminal penalties for knowingly supplying false statements or documentation.

What are the OSHA reporting requirements for COVID-19 incidents?

Employers must report any work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours.

What are the deadlines?

Employers have until December 5, 2021, to meet all of the above requirements (with the exception of testing employees who are not fully vaccinated) and until January 4, 2022, to implement testing of unvaccinated employees.

How long with the ETS be in place?

Employers have until December 5, 2021, to meet all of the above requirements, except that employers have until January 4, 2022, to implement the testing of unvaccinated employees.

Will there be challenges to the ETS?

Lawsuits have already been filed in the Sixth and Eighth Circuits challenging the ETS and we anticipate further challenges.