COVID-19 VACCINATION & TESTING ETS: COVID-19 Vaccination and Testing ETS (osha.gov).
SUMMARY:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is announcing the details of a requirement for employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule, otherwise referred to as an Emergency Temporary Standard (ETS), will also require that these employers provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace.
Under the ETS, covered employer must ensure that their employees receive the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022. Though employees are note required to receive a vaccination, unvaccinated employees will be required to produce a verified negative test to their employer on at least a weekly basis – further, employers are required to remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. It is important for employers to note, that the ETS does not require employers to provide or pay for tests.
As employees aim to comply with soon-to-be-implemented mandatory vaccination policies, covered employers will be required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
The OSHA ETS is not the only federally mandated vaccination requirement, as the current White House Administration has previously implemented policies requiring millions of federal employees and federal contractors to be fully vaccinated – requirements both for the Centers for Medicare & Medical Services (CMS) health care workers, and for Federal Government Contractors. The rules under the new OSHA ETS will not apply to companies already subject to the CMS or Federal Government Contractor requirements. Additionally, to facilitate compliance with employer vaccination requirements, the White House Administration announced on November 4, 2021 that employees falling under any of the ETS, CMS, and Federal Government Contractor requirements will need to have their final vaccination dose by the January 4, 2022, deadline – meaning previous deadlines issued under the CMS or Federal Government Contractor requirements are expected to be amended accordingly.
FORWARD:
Despite the fair amount of time between now and the January 4, 2022, deadline, employers covered by the OSHA ETS might consider implementing a company-wide vaccination policy as soon as possible, so as to deal with the administrative practicalities of doing so. Additionally, while legal challenges to the OSHA ETS are anticipated, court activity suggests a reluctance by the courts to conclude that the ETS poses a threat of irreparable harm to the public, and thus an unwillingness to impose any form of injunctive bar on implementation of the vaccination requirements. As such, companies playing a wait-and-see game with the courts should be wary of the administrative burdens of having to implement a mandatory vaccination policy at the eleventh hour.
For further information or guidance on whether a mandatory vaccination policy is right for your large private company, contact: Mariel Estigarribia at mie@fellplaw.com, or Jim Heller at jwh@fellplaw.com.