Just in time for the holidays, OSHA has released its emergency temporary standard (ETS) requiring large employers (100+ employees) to mandate the COVID-19 vaccine or require employees to submit weekly COVID-19 testing. Below, I’ve detailed the key aspects of the rule, which is scheduled to be published in the federal registrar tomorrow, November 5, 2021. OSHA will enforce the rule through company investigations, likely prompted by an employee complaint. Companies that fail to comply with the rule may be subject to fines. OSHA’s penalties are up to $13,653 per serious violation.
What is required?
Employers with 100 employees or more must establish, implement and enforce a written mandatory vaccination policy. Further, employers must determine the vaccination status of all employees and have specific documentation of the same. Employers may alternatively establish, implement and enforce a written policy that employees either be fully vaccinated or provide proof of weekly COVID-19 testing. In addition, unvaccinated workers must wear face coverings except in situations where they are isolated, or it is not feasible to wear one.
Does it cover employees working remotely?
No, it does not apply to employees who do not report to a workplace where coworkers or customers are present, who work from home or who work exclusively outdoors.
What are the alternative testing requirements?
With respect to weekly testing, employees must be tested at least every 7 days and must provide documentation of the same no later than the 7th day following their last submitted test result. If an employee does not report during a period of 7 days or more to a workplace where others such as coworkers or customers are present, the employee must be tested within 7 days prior to returning to the workplace and must provide documentation of the test results to the employer upon return to the workplace.
Do employers have to provide paid time off or other support for the policy?
Yes, employers must provide a reasonable amount of time to each employee for each of their primary vaccine doses and up to 4 hours of paid time, including travel time, at the employee’s regular rate of pay for this purpose. Also, employers must provide reasonable time and paid sick leave to recover from side effects following receipt of either primary vaccinations.
Do employers have to pay for testing if they offer it as an alternative?
The rule states that it does not require employers to pay for any costs associated with testing; however, payment for testing may be required by other laws
What if an employee tests positive or has been diagnosed by a health care provider?
If an employee tests positive or receives a diagnosis that they have COVID-19 from a health care provider, s/he is not required to undergo testing for 90 days. If an employee tests positive, the employer must immediately remove the employee from the workplace until s/he has a negative result on a nucleic acid amplification test or meets the criteria in the CDC’s isolation guidance. The OSHA rule does not require employers to provide paid time off following positive test results, though other state or local rules may require such.
What must employers provide to employees by way of notice of this rule?
Employers must provide employees with notice of these requirements as well as the employer’s related policies and procedures. Also, employers must inform each employee about COVID-19 vaccine efficacy, safety and the benefits of being vaccinated by providing the document “Key Things to Know About COVID-19 Vaccines” published by the CDC.
What are the dates for compliance?
The OSHA rule is scheduled to be published on November 5, 2021, and employers must comply with all portions of the rule except for the portion requiring testing of employees who are not fully vaccinated by December 5, 2021. Employers must comply with the testing requirements for non-vaccinated employees by January 4, 2021.
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Ms. Batista is an employment & labor attorney who provides businesses with advice and risk mitigation strategies, and zealous representation in litigation. She frequently represents businesses in the hospitality, financial services, automotive dealership, engineering and architecture and healthcare industries. Specifically, Ms. Batista successfully defends employers against claims of discrimination and harassment, retaliation, wrongful termination, and wage and hour violations. Ms. Batista also commonly represents her clients in actions involving employee mobility and trade secret theft. Employment and labor law is ever-changing. Employers need to feel secure in how they manage their employees so they can focus on their business. Ms. Batista affords her clients that security.
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