The Biden Administration’s long-awaited standards regarding mandatory COVID-19 vaccination (and testing) programs for large employers have arrived. On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its new emergency temporary standard (ETS) that requires covered employers to, in OSHA’s words, “develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.”
Which Companies Must Comply With the COVID-19 Vaccination ETS?
The ETS applies to “all employers with a total of 100 or more employees at any time” the ETS is in effect. When determining whether they are above that 100-employee threshold, companies must include part-time employees, remote workers, and seasonal and temporary workers. While such workers are included in calculating the number of employees, the ETS does not apply to employees of covered employees who do not report to a workplace where other individuals such as coworkers or customers are present, who work from home, or who work exclusively outdoors.
What Employers Must Do and When They Must Do It
The ETS, which affects approximately 84 million American workers, requires covered employers to comply with all of its requirements other than testing by December 6, 2021. This includes establishing a vaccination policy, determining employee vaccination status, providing paid time off to workers to get vaccinated, allowing for paid leave to recover from any side effects, and ensuring that unvaccinated employees wear masks.
Beginning January 4, 2022, any unvaccinated employees must undergo weekly COVID-19 testing, though any employee who has received all vaccine doses by that date need not be tested.
If your company employs 100 or more workers, firm or company-wide, here is what you need to do to ensure compliance with the ETS:
- Determine the vaccination status of every employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records of each employee’s vaccination status.
- Require that employees provide prompt notice if they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove those employees from the workplace, regardless of vaccination status, and not allow them to return to work until they meet the required criteria.
- Ensure that they test unvaccinated workers for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee not fully vaccinated against COVID-19 wears a face covering when indoors or in a vehicle with another person for work purposes.
The ETS does not change the requirements for reasonable accommodation under the Americans With Disabilities Act for employees who can’t get the vaccine for medical reasons or under Title VII of the Civil Rights Act of 1964 for workers who can demonstrate a “sincerely held religious belief” as the basis for objecting to vaccination.
Additional Compliance Resources and Court Challenges
Recognizing the challenges and questions faced by employers charged with implementing vaccination and testing plans under the ETS, OSHA has released a host of materials to help businesses understand and comply with their obligations, including a webinar, frequently asked questions, and other compliance materials.
As anticipated, litigation challenging the legality of the administration’s vaccine mandate and the ETS has already been filed – and resulted in a temporary stay ordered by the U.S. Court of Appeals for the 5th Circuit. But the administration has indicated that it will vigorously defend the mandates. Employers should act as if the ETS will survive these legal challenges, as many experts believe that the requirements in the ETS are well within the executive branch’s authority.
Call Kreis Enderle With Questions About Employer COVID-19 Vaccination Policies
If you have questions regarding mandatory COVID-19 vaccinations in the workplace or any other aspects of how the new ETS affects you and your business, please contact the Business Law and Employment Law Practice Groups at Kreis Enderle today.