By: Leah K. Sell, Esq.
Before planning any holiday festivities, employers will want to ensure they have their COVID-19 policies and procedures in order. OSHA has made its list, is checking it twice, and those covered employers who are not in compliance by December 5 may be on the naughty list with penalties not so nice, up to $14,000 per incident.
The Occupational Safety and Health Administration (OSHA) put its Emergency Temporary Standard (ETS) regarding COVID-19 vaccination and testing into effect on November 5, 2021. The ETS applies to most private businesses with 100 or more employees.
Employers who are subject to OSHA will count all of their employees as of November 5, 2021, using a common control method to determine if they are a covered employer with 100 or more employees. Employees will be counted regardless of the employee’s location, employment full-time, part-time, or seasonal status, and include those who have limited or no interaction with the workplace or others.
While certain employees, such as those who work on an exclusively remote basis, are not subject to the ETS’ vaccination, face covering, and testing requirements, all employees must be counted in determining if the employer is a covered employer under the ETS.
Once an employer qualifies as covered under the ETS, they must choose if they will implement a mandatory COVID-19 vaccination policy or a COVID-19 vaccination policy that allows for voluntary COVID-19 vaccination or testing and face covering alternatives.
Covered employers must draft their chosen policy by December 5, 2021, so that they can meet the ETS compliance requirements, including:
- Enforcing the chosen policy in compliance with the ETS.
- Determining and recording acceptable proof of the vaccination status of each employee.
- Ensuring all employees who are not fully vaccinated wear face coverings.
- Providing additional paid leave to employees to obtain the COVID-19 vaccination and recover from vaccine side effects.
- Requiring employees to report a positive COVID-19 test or diagnosis.
- Removing from the workplace any employee who receives a positive COVID-19 test or diagnosis.
- Providing employees with information about the ETS including:
- The employer’s ETS-compliant vaccination workplace policies and procedures;
- Information from the CDC on the vaccination’s efficacy, safety, and benefits;
- A copy of OSHA’s workers’ rights; and
- Notice to employees regarding criminal penalties for supplying false information or documentation.
- Maintaining records and making records available.
- Reporting any work-related COVID-19 fatalities or in-patient hospitalizations to OSHA.
Beginning on January 4, 2022, covered employers will also have to ensure that any employee in the workplace, who is not fully vaccinated, provides a negative test for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). Employers will have to obtain, and confidentiality maintain, acceptable proof of the employee’s COVID-19 testing.
The ETS does not require employers to pay for testing or the time that employees take to test. However, certain laws such as those concerning wage and hour, accommodation and other civil rights, and state and local laws may require employers to provide such payments.
Each employer and employee situation will be unique, so it is highly recommended that employers consult with their local legal counsel in preparing for and implementing the ETS requirements. Employers will want to move quickly and carefully as the holiday and compliance season will soon be upon us.
Employers with questions related to COVID-19 and the workplace, the ETS, or other questions related to employment law, should contact Leah Sell.
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 Currently there are several courts considering multiple lawsuits filed by numerous states and private business challenging the ETS. At least one court, the Fifth Circuit, has temporarily stayed ETS enforcement. Should a stay of enforcement extend beyond December 5, 2021, employers in those jurisdictions could be provided with a temporary reprieve. However, without a stay in the applicable jurisdiction(s) or beyond December 5, employers will need to be in compliance despite any pending litigation.