SHARE

December 09, 2021

OSHA Releases COVID-19 Emergency Temporary Standard on Vaccination and Testing

You've Reached Your
Free Article Limit This Month
Register for free to get unlimited access to all Law.com OnPractice content.
Register Now

On Nov. 4, the Occupational Safety and Health Administration ("OSHA") released its highly anticipated COVID-19 Vaccination Emergency Temporary Standard ("ETS"). The ETS is effective immediately upon publication in the Federal Registrar, which is scheduled for tomorrow. Unless otherwise stated below, the ETS compliance requirements take effect 30 days after such publication. Employers covered by the standard must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with the exception of employers that instead adopt a policy requiring employees to either get vaccinated or choose to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

The ETS covers all employers with a total of 100 or more employees, except those workplaces:

  • Covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance); or
  • In settings where any employee provides healthcare services or healthcare support services when subject to the requirements of 29 CFR 1910.502, the Healthcare ETS.

The ETS does not apply to employees of covered employers:

  • Who do not report to a workplace where other individuals, such as coworkers or customers, are present; or
  • While working from home; or
  • Who work exclusively outdoors.

Determining Employee Vaccination Status

Under the ETS, employers are now required to obtain "acceptable proof" of vaccination status of each employee. This determination must include whether the employee is fully vaccinated, which is two weeks after the full required vaccine course is completed, or partially vaccinated. Generally, "acceptable proof" requires official documentation (such as a Vaccination Record Card). If an employee is unable to produce the required documentation, the employee must attest to their vaccination status in a signed dated statement. Any employee who does not provide "acceptable proof" of vaccination status must be treated as not fully vaccinated for purpose of the ETS. Employers must also maintain a record of each employee's vaccination status and must preserve "acceptable proof" of vaccination while the ETS remains in effect, which is estimated to be six months.

Employers must now support an employee's efforts to obtain the COVID-19 vaccination by providing up to four hours of paid time, including travel time, at the employee's regular rate of pay for this purpose. Employers must also provide reasonable recovery time and paid sick leave for employees to recover from side effects experienced following vaccination.

Requirements for Employees who are Not Fully Vaccinated (Required 60 days after Publication)

Employees who are not fully vaccinated and who report at least once every seven days to a workplace, must be tested for COVID-19 at least once every seven days and must provide documentation of the most recent COVID-19 test result to the employer. The test cannot be both self-administered and self-read unless observed by the employer or authorized telehealth proctor.

Employer payment for testing is not mandated in the ETS but may be required by other laws, regulations, collective bargaining agreements, or collectively negotiated agreements.

Employers also must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, subject to some exceptions.

Employee Notification of a Positive COVID-19 Test and OSHA Reporting

Regardless of COVID-19 vaccination status or any COVID-19 testing required under the ETS, employers must require each employee to promptly notify them of a positive COVID-19 test result or of a licensed healthcare provider's diagnosis of COVID-19 and immediately remove any employee who receives a positive test or diagnosis. Employees who test positive or are otherwise diagnosed, cannot return to the workplace unless they receive a negative COVID-19 test result and meet the return to work criteria in the Center for Disease Control's "Isolation Guidance," or receive a recommendation to return to work from a licensed healthcare provider. The ETS does not require employers to provide paid time off to any employee for removal from the workplace.

The ETS requires that employers report to OSHA:

  • Each work-related COVID-19 fatality within 8 hours of learning about the fatality; and
  • Each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.

Establish a Policy and Notify Your Workforce

Employers are required to inform each employee, in a language and at a literacy level that the employee understands, the ETS requirements and employer ETS policy. Employers must also provide the document, "Key Things to Know About COVID-19 Vaccines," available at the CDC website, as well as notifying employees of the prohibitions against discharge, retaliation, and discrimination for reporting work-related injuries or illness and of the penalties associated with providing false statements or documentation.

If you have any questions regarding this new rule or need to develop or update your vaccination compliance plan, please contact Maria Fracassa Dwyer at [email protected] or a member of Clark Hill's Labor and Employment team. 

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice. 

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Clark Hill, PLC

What the California Environmental Quality Act Means for Cannabis Operators in the Golden State

By Steven L. Hoch Clark Hill, PLC March 22 , 2022

Cannabis is big business in California.

EPA Proposes Updates to the Hazardous Air Pollutant Copper Smelting Rules

By Danielle M. Hazeltine Clark Hill, PLC March 22 , 2022

On Jan. 11, EPA proposed more stringent National Emissions Standards for Hazardous Air Pollutants (NESHAPs) that apply to both major and area source primary copper smelters.

Investing in State Law Compliant Cannabis Businesses: Part 2 - Diving Deeper

By Sander C. Zagzebski Clark Hill, PLC March 21 , 2022

In Part 1 of this two-part series, we addressed the high-level concerns that a new investor should consider in making an investment in a state legal cannabis company. In this follow up, we address some of the more nuanced issues that investors should consider before deciding to invest in a specific cannabis company.

More From Labor Law

5 Trends to Watch in 2023 in Texas Health Care

By Joseph F. Coniglio Greenberg Traurig January 19 , 2023

Observers believe that the COVID-19-related public health emergency (PHE) will be extended until April of 2023.

Cookies and Other Tracking Technologies May Violate HIPAA

By Karin E. Ross Greenberg Traurig January 18 , 2023

In the midst of significant privacy changes in many U.S. states affecting tracking technologies such as cookies, pixels, and adtech, new lawsuits are alleging entities violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA) via impermissible disclosure of protected health information due to the use of these technologies.

No Longer a Slap on the Wrist: OSHA Continues to Raise Its Maximum Penalty Amounts

By Adam Roseman Greenberg Traurig January 18 , 2023

On Jan. 12, 2023, the U.S. Occupational Safety and Health Administration (OSHA) announced another increase in the maximum civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations.

Featured Stories
Closeclose
Search
Menu

Working...