Understanding the Impact of OSHA’s New COVID-19 Policies on Employers

The Occupational Safety and Health Administration (OSHA) released its long-awaited Emergency Temporary Standard (ETS) requiring employers to implement policies for mandatory COVID-19 vaccination or weekly COVID-19 testing. The ETS applies to private employers with more than 100 employees. While the ETS does not, by its own language, apply to public employers, state law and OSHA State Plans may extend the ETS to public employers in your state.

  • Who it applies to. The ETS applies to all employers that have at least 100 employees across the entire company. However, the ETS does not apply to employees while they are working from home.
  • What it requires. Under the ETS, employers must have a written policy that either: (1) requires all employees be vaccinated against COVID-19, or (2) requires all unvaccinated employees to provide a negative COVID-19 test every week and wear a face covering in the workplace.
  • Testing. Unvaccinated employees must be tested each week if they are in the workplace at least once per week, or within 7 days before returning to the workplace if they were away for at least one week.
  • Timeline. Employers must comply with the provisions of the ETS, except for weekly testing, by December 5, 2021. Employers that choose to allow weekly testing must begin by January 4, 2021.
  • Paid time off. Employers must provide employees up to four hours of paid time off to receive each vaccination dose, as well as paid sick leave to recover from any side effects following each dose. The ETS does not require employers to pay for any costs associated with testing. However, employers may be required to pay for testing through other laws or collective bargaining agreements.
  • Face coverings. Employees who are not fully vaccinated must wear a face covering while indoors. There are limited exceptions for employees who are: (1) alone in a closed room, (2) actively eating or drinking, or (3) for identification purposes related to safety and security. Employers may not prevent an employee, regardless of vaccination status, from choosing to wear a face covering.
  • Communication to employees. Employers must provide employees with certain information, including:
  1. Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS,
  2. The CDC document entitled “Key Things to Know About COVID-19 Vaccines,”
  3. Information about protections against retaliation and discrimination, and
  4. Information about laws that provide criminal penalties for knowingly supplying false statements or documentation.
  • Record keeping. Employers will be required to keep the following records:
  1. Employers must determine the vaccination status of each employee, keep a roster of vaccinated employees, and collect proof of vaccination. These records should be treated as confidential.
  2. Employers must make an employee’s vaccination documentation and test results available to the employee or anyone with the employees written authorized consent. Employers must also make available the aggregate number of fully vaccinated employees, as well as the total number of employees. If an employee requests any of the above, the employer must provide a response by the end of the next business day.
  3. Employers must report work-related COVID-19 deaths to OSHA within 8 hours of learning about them, and work-related COVID-19 hospitalizations within 24 hours of learning about them.
  • Positive tests. Any employee who tests positive for COVID-19, whether vaccinated or not, must inform their employer. The employee must be removed from the workplace and may not return until they receive a negative test result, meet the CDC criteria, or a health care provider recommends their return.
  • Litigation. There are already numerous lawsuits across the country challenging the enforceability of the ETS, and the 5th Circuit Court of Appeals has issued a stay prohibiting OSHA from enforcing the ETS for the time being. However, we encourage employers to familiarize themselves with the requirements of the ETS and be prepared to implement the necessary policies by December 5, 2021 and January 4, 2022 respectively.

For more information or if you have questions about how the ETS directly impacts your business, please contact Greg Vanden-Eykel or Eric Davey at 617.654.8200.

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