Employers with 100+ employees must begin rolling out new COVID-19 vaccination and testing requirements, per OSHA Emergency Temporary Standard (ETS)
November 5, 2021
By Nicole Murphey
On December 17, 2021, the US Court of Appeals for the Sixth Circuit revived the OSHA ETS mandate for employers with 100 or more employees. This has been immediately appealed to the US Supreme Court, but for now, the Emergency Temporary Standard on Vaccination and Testing is back in effect.
Please NOTE: The following points do not apply to federal employees, federal contractors or subcontractors, or employers in the health care industry, as these groups are subject to different requirements and deadlines.
If you have not done so already, Employers should:
- Determine the total employee headcount within the company as of November 5, 2021. The headcount should be done at the firm- or corporate-wide level, not at an individual location level. Be sure to include any part-time, temporary, and seasonal employees. Employees who fully work from home must be included to establish the total headcount, but in many cases, they will not be subject to the vaccination or testing requirements.
If your employee headcount falls below the 100-employee threshold after November 5, 2021, they continue to be covered by the ETS while it remains in effect.
If your employee headcount subsequently crosses the 100-employee threshold after November 5, 2021, they will be covered by the ETS on that date.
- Assess the workforce and determine which employees have already been vaccinated. In all states except Montana, it is legal to inquire about the vaccination status of your employees.
- Review your PTO and sick leave policies. The ETS requires that Employers provide a reasonable amount of PTO (up to 4 hours) during work hours to obtain each dose of the vaccine (but not boosters). Employers cannot require employees to use existing paid leave for this purpose.
Paid leave for adverse effects of vaccine. If the company offers sick leave in addition to other forms of leave, employers can require an employee to use existing and available sick leave to recover from any adverse effects from vaccination. If there is no existing paid leave available, the Employer must provide a new form of leave (up to 2 days per dose). The company cannot require employees to “borrow” against future sick leave.
- Select a vaccine policy.
Option 1 [Favors More Vaccinations] – Company implements a mandatory vaccination policy, but some employees may be exempt from the mandatory vaccination rule if they meet one of the reasons (1) – (3) below. Exempt employees must submit to weekly testing and wear face coverings at all times in the workplace.
- If the vaccine is medically contraindicated for them;
- If medical necessity requires a delay in vaccination; or
- If the employee is legally entitled to an accommodation because of a medical disability or a sincerely held religious belief.
Option 2 [Favors More Testing] – Company implements a voluntary vaccination policy, but all unvaccinated employees must submit to weekly testing to enter the workplace and must wear face coverings at all times in the workplace (with very limited exceptions). Testing time may be considered compensable, especially if it is done during the workday, or if it is done while off-duty but is “necessary for [certain employees] to perform their jobs safely and effectively.”
- Consider how to collect information. Policies should outline the rationale for the vaccine requirement and provide guidance for any employee who may seek an exemption to the vaccine requirement. Consider how your company will distribute notice of the mandate, collect proof of vaccination and testing results from employees (as this information needs to be kept confidential and separate from personnel files), and how employees will submit requests for exemptions.
- Requests for exemptions to a mandatory vaccination policy must be handled on a case-by-case basis and are extremely fact-specific. The Company will also need to consider what kinds of accommodations may be suitable for their individual workplace and workforce, as well as applicable discipline for employees who do not comply with the vaccine mandate and do not fall within a legitimate exemption. Employees who have tested positive for COVID-19 or already recovered from a COVID-19 infection are not considered to have “natural immunity” and are still subject to the ETS’ requirements.
- Weekly testing. As for any unvaccinated or exempt employees, they must submit to weekly testing. Employers are not required to cover the costs of testing under the ETS. However, please note that local and state laws, regulations, or collective bargaining agreements may require the Employer to pay these costs.
- Review your other COVID-19 Safety Protocols: Face mask policies, social distancing, staggered shifts, hand washing and hygiene policies, etc. should all still be in use to further mitigate risk of contagion and comply with the Employer’s duty to provide a workplace free from recognized hazards pursuant to the “General Duty Clause” under OSHA.
NEW Deadlines for Employers:
JANUARY 10, 2022 – Employers must implement all notification and policy requirements under the OSHA ETS (minus the vaccination and testing).
NOTE: OSHA has not specifically said they were “resetting the deadlines,” but they recognized the recent court actions can be confusing — so they will not issue any citations for noncompliance with the ETS requirements “before January 10, 2022, so long as an Employer is exercising reasonable, good faith efforts to come into compliance.”
FEBRUARY 9, 2022 – Deadline for employees to be fully vaccinated; Weekly testing starts.
Employees covered by a mandatory vaccination policy must be “fully vaccinated” by February 9, 2022. This means employees should plan to obtain their second dose (if Pfizer or Moderna) or their single dose (if J&J) no later than January 26, 2022 to be considered fully vaccinated by the deadline. We recommend that employers distribute information about the OSHA ETS mandate as soon as possible to permit employees enough time to schedule vaccination appointments, especially if they require two doses of the vaccine.
If you have questions or would like assistance with the OSHA ETS mandatory or voluntary vaccination policy terms, recordkeeping or reporting requirements, exemption requests, or any other matters related to your workforce, our Employment Practice Group is here to help.