*Update* On January 13th, the Supreme Court issued a ruling that freezes Biden’s vaccine-or-test mandate for large private businesses. If you have any further questions regarding this ruling, please reach out to us.
Last Thursday, the Occupational Safety and Health Administration (OSHA) released its long-awaited Emergency Temporary Standard (ETS) regarding the federal vaccine mandate. As per President Joe Biden’s September 9th announcement, OSHA is now requiring employers with 100 or more employees to mandate employee vaccination against COVID-19 or undergo testing at a minimum of once per week. This article will discuss the additional requirements established by the ETS.
The ETS, covering about 84 million employees across the country, stated that employers with 100 or more employees are required to create a written policy that outlines COVID-19 vaccination requirements. Employers must either mandate vaccination for all employees or allow them to choose between vaccination and weekly testing. Unvaccinated employees are also required to wear face coverings. However, those who are unable to get the vaccine or wear a face covering due to a disability or religious belief are able to request a reasonable accommodation, dependent on approval by the employer and in accordance with EEOC guidance.
Also, the ETS explains that the 100-employee minimum is based on the organization as a whole, not individual locations, and includes part-time and full-time employees, but not independent contractors. Employees that are in a workplace by themselves (no other employees or customers), work from home, or work exclusively outdoors are not covered by the ETS but are still included in the total employee number. Employers are required to provide a reasonable amount of paid time off in order for employees to get the COVID-19 vaccine (up to four hours) if the vaccination process occurs during working hours and provide paid sick leave for recovery time as a result of any side effects.
Employees must provide acceptable proof of vaccination to their employer to be considered fully vaccinated. An employee that is vaccinated but does not submit proof, will have to follow testing and face covering requirements.
As for weekly testing, employers are not required to pay under the ETS but may be required under an employment agreement or state regulation. New York does not currently require employers to pay for testing. If employers choose to do so, they are permitted to pay for their employees’ testing.
Employees who do not get the vaccine must take a COVID test at least once per week and submit the results to their employer. If an employee is away from the workplace for a week or more, they must get tested within a week of their return. Unvaccinated employees that fail to submit test results are to be removed from the workplace and prohibited from returning until they submit a negative test result. Similarly, an employee that receives a positive test result must inform their employer promptly. These employees, regardless of vaccination status, must remain home until medically permitted to return.
In addition to submitting testing, unvaccinated employees must wear face coverings while indoors and while in a work vehicle with another employee. Unvaccinated employees are permitted to remove their face covering when alone in a closed room, while eating or drinking, when needed for identification purposes, when wearing a respirator or face mask, and when the employer can demonstrate that wearing a face covering is infeasible.
Similar to testing, employers can pay for face coverings if they choose to do so but are not required to, unless they are required to under an employment agreement or state regulation.
Employers are also required to provide several documents to their employees. First, an employer must provide, in a format that their employees can understand, information about the ETS and the policies the employer has established in compliance with the ETS. Second, they must provide the CDC document titled “Key Things to Know About COVID-19 Vaccines.” Third, information regarding employee protection from retaliation and discrimination, and fourth, information on criminal penalties for knowingly supplying false statements or documentation.
OSHA’s federal rule went into effect immediately. However, employees must be vaccinated by January 4, 2022 or begin their weekly testing. For all other requirements set forth by OSHA, such as implementing a COVID policy, employers must be in compliance by December 5, 2021.
While there has been a constitutional challenge in federal court, we are urging our clients to be prepared for this mandate. If you need assistance meeting the requirements of this new rule, please reach out to us.