On November 4, 2021, OSHA issued its Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to implement either a mandatory vaccine policy or a voluntary vaccine policy with a weekly testing option. The ETS places additional obligations on employers, and in less than two weeks multiple legal challenges were filed in almost every federal circuit court of appeals.
On November 6, 2021, the Fifth Circuit Court of Appeals (based in New Orleans) issued a very short preliminary ruling “staying” implementation of the ETS pending further briefing in the court. Then, on November 12, 2021, the Fifth Circuit entered a long opinion in which it issued a preliminary stay of the law. As a result, OSHA stated that it “has suspended activities related to the implementation and enforcement of the ETS, pending future developments in the litigation,” although it “remains confident in its authority to protect workers in emergencies.”
While the ETS implementation is likely to be halted until the Supreme Court weighs in, employers should continue preparation as though they plan to comply with the original mandate.
The ETS, if implemented as currently written, will require all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected.
As part of OSHA’s ETS, employers must also:
- establish, implement, and enforce a written policy on vaccines, testing, and face coverings;
- provide certain information to employees on vaccines and the requirements of the ETS
- provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose;
- obtain and maintain records and roster of employee vaccination status; and
- comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
Employers who ignore the ETS could face OSHA citations and penalties of up to $13,653 per violation, as well additional fines or penalties as determined by OSHA or state OSHA for willful failure to comply. Enforcement was initially scheduled to begin December 6, 2021, for all portions of the ETS other than testing and vaccination compliance date, which was due to start January 4, 2022.
Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. If no proof of vaccination is provided, you must treat such employees as unvaccinated. Acceptable proof of vaccination status is:
- the record of immunization from a health care provider or pharmacy;
- a copy of the COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health, state, or tribal immunization information system; or
- a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. The attestation must state their vaccination status and that they have lost and are otherwise unable to produce proof. In these cases, the employer must require that employees declare that the statement of their vaccination status is true and that they understand providing false information may subject them to criminal penalties.
Employees who report to a workplace where there are other individuals and who are not vaccinated must be tested once weekly. Weekly testing applies to employees who report to the workplace at least once every seven days and employees must provide documentation of the most recent COVID-19 test result no later than the seventh day following the date the employee last provided a COVID-19 test result.
More detailed information, including model vaccination and testing policies are available on the OSHA site. CIC Plus will continue to monitor the ETS court situation and update information as more becomes available.