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OSHA's Emergency Temporary Standard for COVID-19 Vaccination & Testing

On November 4, 2021, OSHA finally released its much-anticipated emergency temporary standard (“ETS”) for COVID-19 vaccinations and testing. The entire release is available here – but if you don’t have time to read the entire 490(!) page document, below are the key takeaways:

Deadline – the ETS takes effect immediately, but employers have 30 days (up until December 5, 2021) to comply with all requirements except testing for employees who are not fully vaccinated (which had a deadline of January 4, 2022). In other words, by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.

Application – the ETS applies to all employers with a total of 100 or more employees at any time the ETS is in effect, except:

  • those 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 OSHA’s COVID-19 Healthcare Emergency Temporary Standard; or

  • employees who do not report to a workplace where other individuals are present, employees who work from home, or employees who work exclusively outdoors.

Policy on Vaccination – each covered employer is required to develop, implement, and enforce a mandatory COVID-19 vaccination policy.

Testing in Lieu of Vaccination – as an exception to a mandatory vaccination policy, employees may elect weekly COVID-19 testing and face-covering requirements. Employees who opt for testing in lieu of vaccination can be required to cover the cost of such testing.

Determining Employee Vaccination Status – each covered employer must determine the vaccination status of each employee, obtain proof of vaccination, and maintain relevant records, including a roster of each employee’s vaccination status.

PTO – each covered employer must provide a reasonable amount of time for each employee to receive their vaccination, including up to four hours of paid time to receive the vaccine, and paid sick leave to recover from any side effects experienced following receiving the vaccine.

Notification of Positive COVID Test – regardless of vaccination status, each covered employee must (1) require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; (2) immediately remove and such employee from the workplace; and (3) keep the employee out of the workplace until certain criteria are met.

Providing Information to Employees – each covered employer must provide employees the following in a language and at a literacy level employees will understand: (1) the requirements of the ETS and any employer policies and procedures establish to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about the prohibition against retaliation and discrimination; and (4) information about laws which provide for criminal penalties associated with knowingly supplying false statements or documentation.

The ETS also provides for certain OSHA reporting requirements, including fatalities and in-patient hospitalizations and requires covered employers to make available to OSHA employee records of vaccination and test results

With the December 4, 2021 deadline fast approaching, covered employers should immediately begin drafting and implementing a mandatory vaccination policy. Lawsuits will inevitably be filed to try to stop the implementation of the ETS, and the rule may even be enjoined before the December 4 deadline, but employers should begin preparing now. OSHA has provided sample polices here.

Employers are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.

This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.

Copyright © 2021 Stefanik Iosue & Associates, LLC. All rights reserved.



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