UPDATE: The Occupational Safety and Health Administration (OSHA) published on their website on Nov. 16, 2021, that the COVID-19 vaccination and testing emergency temporary standard (ETS) is being put on hold due to pending litigation. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."
What are the ETS requirements?
Essentially, the standard requires employers to:
- Establish and enforce a mandatory COVID-19 vaccination policy; or
- Generate a policy permitting employees to receive a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing performed.
While enforcement of the ETS is suspended until further notice, affected employers may still want to prepare and review the requirements to mitigate areas of potential violation risks including:
1. Vaccination Policy
Vaccine policies are a serious consideration that should not be taken lightly. You should consult with your legal counsel prior to creating and implementing any vaccine policy. The ETS will require your organization to produce a written mandatory vaccination policy. Comprehensive and effective policies must address:
In addition to addressing these requirements, employers should also include all relevant information regarding the policy’s effective date, to whom the policy applies, deadlines and procedures for compliance and enforcement.
- COVID-19 vaccination requirements including any appropriate exclusions for medical necessity or reasonable accommodation under federal civil rights laws.
- Official procedures for determining and collecting employee vaccination statuses.
- Means for notification of positive COVID-19 tests.
- Identified channels to communicate or transmit information to employees.
- Employee mandatory face-covering usage.
- Disciplinary actions for noncompliant employees.
2. ExemptionsWhile your organization may have a mandatory vaccination policy, some employees will be entitled to reasonable accommodations due to a disability or sincerely held religious belief that prevents them from vaccination. An employee entitled to a reasonable accommodation will still be required to be tested weekly.
Your company should establish and communicate a formal policy for all employees requesting exemptions including requirements for official documentation. The Equal Employment Opportunity Commission provides valuable information about evaluating requests for reasonable accommodation and liability.
3. RecordkeepingThe ETS’ recordkeeping requirement will add a heavy workload for your human resources staff. Along with identifying each employee’s vaccination status, you must also obtain acceptable vaccination proof and maintain an employee vaccination status roster. Additionally, any employee proof of required regular testing will also need to be recorded.
Remember, vaccination records, rosters and testing records are considered employee medical records and must be maintained as such. They must not be disclosed except as required or authorized by the ETS or other federal law.
4. PTO RequirementsThe ETS requires employers to allow reasonable time, up to four hours of paid time, to receive a primary vaccination dose. You cannot require employees to utilize their personal time or sick leave to receive their vaccination(s). The four hours must include travel time at an employee’s regular rate of pay for purpose of vaccination and paid sick leave to recover from side effects.
If your organization determines to allow employees weekly testing proof instead of vaccinations will be responsible for maintaining proof of employee’s records. Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. Testing standards include:
Your organization is not required to pay for any costs associated with testing.
- Employees who report at least once every 7 days to the workplace must be tested at least once every 7 days and provide proof to employer every 7 days.
- If an employee doesn’t come for more than 7 days, they must be tested within 7 days of returning to work and provide proof upon return to workplace.
We’re Here to Help with Mitigating Risks
While the future of the ETS is still up in the air, employers should prepare for and be ready to comply with the OSHA standard. Violations could incorporate up to $13,653 for each violation of the standard. Those employers that willfully or repeatedly violate the standard can be fined up to $136,532. If you have more questions about the ETS and its effect on your employer liability risk, connect with a member of our team.