By Denise M. Murphy and Daniel M. Baumel
The Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) on Covid-19 Vaccinations. This ETS expressly supersedes all state and municipal laws that are in conflict with the parameters of this regulation. The ETS takes effect immediately and serves as a proposal for the final rule. The ETS was formally published in the Federal Register on November 5, 2021.
By December 5, 2021, employers that have 100 or more employees (consisting of the total of full-time and part-time employees) any time after November 5, 2021 must:
- Develop, implement, disseminate, and enforce a written mandatory COVID-19 vaccination policy or, as an alternative, a policy that allows an employee to elect either to get vaccinated or undergo weekly federally approved COVID-19 testing verified by an independent party or the employer, and require those employees to wear a face covering in the workplace. OSHA stresses that mandating vaccination is the preferred method, but does allow for this alternative method if an employer so chooses. NOTE: OSHA does not require that employers pay for COVID-19 testing. OSHA’s guidance suggests that “any employee who does not wish to pay…may choose to become vaccinated or leave employment…”
- Provide employees the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Maintain physical or electronic records of the vaccination status of each employee and a roster that lists the vaccination status of every employee, and maintain those records as confidential. Similarly, employers must maintain records of each and every test result of the individual employees who undergoes testing.
- Provide employees with up to four hours of paid leave to receive the vaccination doses, and reasonable time and paid sick leave to recover from any side effects following each primary dose. NOTE: The time provided for receiving the vaccination doses does not run concurrently with any other type of leave. But, accrued sick leave may run concurrently with leave to recover from side effects. NOTE: There is no requirement that employers provide any paid time off to undergo testing.
- Report work-related COVID fatalities and hospitalizations to OSHA within 8 hours of learning about them and COVID-related hospitalization within 24 hours of learning about them.
- Provide immediate notice to their employer when they learn when they test positive for COVID-19 or are diagnosed with COVID-19. The employer must immediately remove the employee who tested positive or was diagnosed by a licensed healthcare provider from the workplace, regardless of vaccination status.
By January 4, 2022, employers with 100 or more employees must:
- Require all unvaccinated employees and partially vaccinated employees to undergo weekly COVID testing (if the employee is in the workplace at least once a week), or within seven days before returning to the workplace, if the employee has not been in the workplace for a week or longer.
- Create a policy that requires unvaccinated and partially vaccinated employees to wear a face covering, indoors and while in close proximity to other employees.
We understand that these are uncertain times and employers are faced with unprecedented and unique situations surrounding COVID-19. The Labor and Employment team of attorneys at Rubin and Rudman are here to answer any questions that you might have. Please contact us at: