The Occupational Safety and Health Administration (OSHA) last week released an emergency temporary standard (ETS) that requires employers with 100 or more workers to ensure employees are vaccinated or submit to weekly COVID-19 testing.
There have been legal challenges already.
The U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation. The petitioners are businesses and employees who claim the mandate is unlawful in that it exceeds the authority Congress gave OSHA and that it is unconstitutional. The stay is only temporary. The government is making its arguments and then the Fifth Circuit will rule whether to extend the temporary stay.
Also, Arizona previously filed a lawsuit alleging that Biden’s approach is an unconstitutional policy favoring migrants entering the U.S. over actual U.S. citizens, violating the Equal Protection Clause.
President Biden initially announced the COVID-19 vaccine mandate in September 2021.
Vaccine Mandate: Employer Requirements
Depending on actions in the courts, the OSHA rule if it goes into effect will require covered employers to provide paid leave for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace.
Employees covered under the ETS would need to have their final vaccination dose — either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson — by Jan. 4, 2022.
The ETS requires covered employers to implement a written policy for employees who come into the workplace:
- Employees must be fully vaccinated
- Employees who are not fully vaccinated must provide results of weekly COVID-19 testing and wear a mask
Also, White House officials say the ETS preempts state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.
There are two exceptions to the ETS — employees who work from home or exclusively outdoors.
When workers do receive a positive test or are diagnosed with COVID-19, employees must promptly provide notice and employers must remove the employee from the workplace, regardless of their vaccination status. Employees cannot return until they meet the criteria for returning to work.
Under the ETS, employers are required to provide employees with up to four hours of paid leave for each vaccination dose, as well as “reasonable time and paid sick leave” (the amount is not fully specified) to recover from the side effects following each dose.
Notices and Records
The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand:
- Information about the requirements of the ETS and workplace policies and procedures
- The Key Things to Know About COVID-19 Vaccines document
- Information about protections against retaliation and discrimination
- Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation
Meanwhile, the ETS requires employers to report to OSHA:
- Work-related COVID-19 fatalities to OSHA within eight hours of learning about them
- Work-related COVID-19 hospitalizations within 24 hours of the employer learning about them
Also, the ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine card and any COVID-19 test results to employees.
Lastly, employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
While the is ETS in effect, it also serves as a proposal for a final standard. Employers may comment online.
OSHA has provided a detailed FAQ page with more information about the ETS, including specifics about the process, including:
- How to calculate the 100-employee threshold
- Dealing with employees who refuse to be vaccinated
- Required documentation to verify vaccination status
- What to do if an employees lose their vaccination cards
- Return-to-work requirements
- Types of acceptable COVID-19 tests
- Mask-wearing requirements
- Effective dates
Employers will have to keep an eye on the courts regarding the vaccine mandate.
Also, despite the information provided for employers, OSHA acknowledges that it may update the ETS in the future.
Still, employers should review the materials from OSHA to remain complaint and monitor any communications from federal officials regarding the vaccine mandate.