OSHA’s long-awaited Emergency Temporary Standard (“ETS”) setting out vaccination, testing and masking requirements for private-sector employers with 100+ employees has finally arrived. This ETS will likely go into effect on November 5, 2021.
WHICH PRIVATE EMPLOYERS MUST COMPLY WITH THE ETS: In determining whether an employer meets the 100+ employee threshold, the initial count of all of a company’s employees across all of its U.S. facilities and locations must take place on November 5, 2021. If an employer has at least 100 employees on that date, it is subject to the ETS for the remainder of the time that the ETS in effect, regardless of whether the employee count dips down below 100 at a later date. Similarly, if at any point a company’s employee count rises up to the 100+ mark, it would then become subject to the ETS and remain so while the ETS is in effect, regardless of future fluctuations.
WHAT ARE THE MAJOR REQUIREMENTS? The ETS has five major requirements with which covered employers must comply, which are summarized as follows:
1) Develop, implement and enforce a written policy either mandating vaccination or offering a choice between vaccination and a combination of testing and masking requirements. All requirements are subject to approved reasonable accommodations for medical conditions, disabilities, and sincerely held religious beliefs, as well as a few other exceptions and exemptions.
2) Provide employees who choose to be vaccinated with at least 4 hours of additional paid leave to receive each dose of vaccine, if administered during work hours, and a reasonable amount of paid sick leave to recover from any side effects of the vaccine. OSHA has indicated that it would consider 2 days to be reasonable, but it is up to the employer to determine how much leave to give.
3) Temporarily remove from the workplace any employee who tests positive for COVID and/or is diagnosed with COVID-19 by a licensed healthcare provider.
4) Collect and retain documentation of each employee’s proof of vaccination status and maintain a constantly updated roster of all employees listing their vaccination status and, if the employee is not vaccinated, identifying the reason why.
5) Report all work-related COVID-19 in-patient hospitalizations and fatalities to OSHA.
WHEN DO COVERED EMPLOYERS HAVE TO BE IN COMPLIANCE: Whether an employer chooses the vaccine mandate or the testing and masking alternative, by December 5, 2021, all covered employers must have a written policy in place and begin masking for all covered employees who are not fully vaccinated (an employee is considered “fully vaccinated” two weeks after the final dose is administered). On January 4, 2022, all covered employees who have not received the final dose of a COVID-19 vaccine must begin weekly testing. Employers who choose to implement a vaccine mandate can set their own deadlines by which employees must be “fully vaccinated,” as long as unvaccinated and partially vaccinated employees begin masking by December 5, and begin weekly testing on January 4, until they reach fully vaccinated status.
WHAT ARE THE PENALTIES FOR NON-COMPLIANCE: As is true for other OSHA violations, the fines and penalties for non-compliance can be very steep. While the ETS itself does not set out any specific fines, failure to comply with this ETS subjects employers to OSHA’s general penalties, which can be up to $13,653 per violation (or $136,532 per violation for willful or repeated violations), with an additional maximum of $13,653 per day for failure to abate a violation.
WHO PAYS FOR WEEKLY TESTING: OSHA does not require that an employer pay for testing. OSHA’s goal is to encourage employees to get vaccinated; therefore, it specifically declined to require employers to pay in order to create a financial incentive for employees to choose vaccination over costly weekly testing. Of course, employers are not forbidden from providing or paying for testing if they so choose.
WHAT IF AN EMPLOYER ALREADY HAS A WRITTEN VACCINATION MANDATE OR MASKING POLICY: OSHA has set out of litany of topics that the written policy must contain in order to comply with the ETS. It also details how the policy must be disseminated to employees and what additional information must be provided to them along with the policy. Therefore, it is likely that most policies will have to be revised or rewritten in order to comply with the ETS.
If you have more detailed questions about the specific requirements of the ETS or for assistance in writing or revising a policy that complies with the ETS, please contact your Critchfield attorney.
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