Federal OSHA Emergency Temporary Standard – Mandatory Vaccination/Test for Employers with 100+ Employees

On, December 17, 2021, the Sixth U.S. Circuit Court of Appeals dissolved the stay that the Fifth Circuit Court of Appeals of the Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (VAX ETS), which imposes “vaccinate or test” requirements for private employers with 100+ employees.  The Sixth Circuit’s decision was immediately the subject of many emergency requests/appeals to the US Supreme Court.  The Supreme Court accepted the appeal and fast-tracked scheduling oral argument for January 7, 2022.  HOWEVER, the Supreme Court did NOT stay enforcement of the OSHA mandate pending oral argument or a decision on the matter.

Originally, the ETS was effective immediately giving covered employers until December 5, 2021 to comply with the ETS vaccination requirements and until January 5, 2022 to begin required testing for not fully vaccinated employees.  Those dates were all placed on hold when the ETS was enjoined by the Fifth Circuit.

Now, per OSHA, employers will now have until January 10 to develop compliant policies and until February 9 to begin testing programs.  What is required:

• Paperwork/Recordkeeping:
o Develop and implement a mandatory COVID-19 vaccination policy.  Employers are required to seek out the vaccination status of each employee, obtain proof of vaccination, maintain records of employees’ vaccination status, and a roster of each employees’ vaccination status.  Such records must remain confidential
o Provide employees with information about the VAX ETS, such as by providing a copy of the CDC’s notice located at: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html.”
o The ETS provides several methods by which employees can prove their vaccination status, including an attestation/written statement that the statement is truthful and false information may subject the employee to criminal penalties.  Employees that do not provide proof of vaccination status must be treated as NOT fully vaccinated.
o For employees required to test, the employee must provide, and the employer must maintain, records of the weekly testing, which are confidential medical records.

• Vaccination/Accommodation: Covered employers must mandate vaccination for all employees, except for those who need an accommodation or other medical necessity.  Notably, the ETS does not impose or direct employers as to how to sanction employees who will not comply, other than to require testing and face coverings.

• Paid Time Off: Employers are to provide employees with up to four hours of paid time at the regular rate of pay to receive each dose of the vaccine, and time and paid sick leave to recover from any side effects.

• Testing/Face Coverings
o Each unvaccinated or not fully vaccinated employee must be tested weekly – The federal ETS does NOT require employers to pay for testing (but CA employers likely have to permit testing during paid hours and at no cost to the employee per CA’s newly updated ETS).  Not fully vaccinated employees who test COVID+ become exempt from weekly testing requirements for 90-days.
o Not fully vaccinated employees must wear a face covering when working indoors or occupying a vehicle with another person during work, except in an enclosed office-type space, for the time limited to eating or drinking, for security compliance, or where a face covering is infeasible or creates a greater hazard.
• Employer’s compliant ETS policy must require employees to give notice upon learning that the employee tested positive or was diagnosed with COVID, regardless of vaccination status.