On September 9, 2021, President Biden unveiled his new COVID-19 Action Plan. This included a Vaccine Mandate for employers with 100+ employees, pending further guidance via OSHA Emergency Temporary Standards (ETS).
That guidance has finally arrived–and with it even more questions and a great deal of backlash. Here’s what we know so far.
Update: Court Halts OSHA’s Vaccination-or-Testing ETS
On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees.
The current ruling is temporary. However, we expect to learn soon whether the Court will extend its ruling.
The first deadline for employers subject to the OSHA ETS is December 5. Check back here and on the SDP blog for future updates about the ETS, including updates about the status of legal challenges to it.
OSHA’s New COVID-19 Emergency Temporary Standards (ETS)
On November 5, 2021, OSHA released its new Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100+ employees. Under OSHA guidelines, employers must start following the ETS requirements by December 5, 2021.
Despite the December 5 deadline, the testing requirements don’t apply until January 4, 2022.
With that said, the ETS is extensive, and we’ll be updating this post and our blog with additional details as they are released.
Interaction with Other Laws
OSHA states that its ETS trumps state or local requirements that limit an employer’s ability to require COVID vaccination, COVID testing, or face coverings.
According to OSHA, such state and local bans are completely overruled, even for employers who aren’t subject to the OSHA ETS (i.e., those with fewer than 100 employees).
The ETS requires covered employers to choose between adopting a mandatory vaccination policy or adopting a policy allowing employees to choose to either:
- Get vaccinated, or
- Test weekly and wear a face covering indoors.
Covered employers must ensure their employees are “fully vaccinated” by receiving two doses of Pfizer or Moderna or one dose of Johnson & Johnson by January 4.
After January 4, covered employers must ensure that employees who are not fully vaccinated produce a negative test on at least a weekly basis.
The ETS does not require employers to pay for the cost of the tests. However, other laws may require this.
Additionally, employees cannot perform these tests at home unless an “authorized telehealth proctor” observes the employee take the test and reads the results.
Paid Time Off
Covered employers must also provide up to four hours of paid time off for employees to get vaccinated during work, including travel time. Employers cannot take this time out of an employee’s leave bank.
And while the ETS doesn’t require employers to reimburse employees for transportation costs to get vaccinated, other laws might. For example, California requires employers to reimburse employees for mileage.
Employers must also provide two days of paid sick time to recover from vaccine-related side effects. For this, employers can require employees to use their accrued sick leave or PTO (but not vacation).
The OSHA ETS applies to employers with 100+ employees. These counts include all employees in the United States (including part-time and fully remote employees).
Once an employer hits the 100-employee mark (on or after November 5), they remain subject to the ETS for as long as it remains in effect.
Note that some employers may be completely or partially exempt from this ETS. For example, if they are subject to the federal contractor Executive Order or the COVID healthcare ETS.
Generally, employees of a covered employer are subject to the ETS requirement to either get vaccinated or test weekly and wear a face covering inside. The following employees are exempt:
- Employees who work entirely alone (there are no other employees, clients, or customers present during their workday)
- Fully remote or “work from home” employees
- Employees who work exclusively outdoors
It’s possible (though unlikely) for an employer to be “covered” under the ETS and for all of its employees to be exempt from the ETS requirement to get vaccinated or test weekly. An example would be a company with 150 employees who are all working remotely.
Under the ETS, employers must have a policy either requiring all employees to be vaccinated (subject to medical or religious exemptions) or allowing employees to choose between getting vaccinated or testing for COVID weekly and wearing a face covering indoors.
Employers may choose to have one policy for certain workers and the other for different workers. As with any employment decision, the distinction should be based on a legitimate business reason.
Your policy must be written and have specific information set out in the Emergency Temporary Standards. Employers can find sample templates on the OSHA resource page under Implementation.
The ETS is lengthy, with additional requirements and details. We will continue to update our resources as we learn more.
For more information, we recommend you review the resources provided by OSHA. In particular, the 28-minute webinar is very informative and should provide you with the information you need right now.
With guidance around President Biden’s COVID-19 Vaccination Mandate and the OSHA Emergency Temporary Standards changing daily, we remain committed to providing you the resources you need to get through this next phase of the pandemic.
You can learn more about how to implement the vaccination-or-testing requirement in our system here. Additionally, SDP is developing a module specifically for this. Stay tuned for further updates.
No matter your situation, our HR team is here to help. If you need any help navigating COVID-19 for your business, let us know here. Finally, don’t forget to follow us on Facebook, Twitter, and LinkedIn for even more resources & news!
*Southland Data Processing, Inc. (“SDP”) is not a law firm. This article is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other SDP materials does not create an attorney-client relationship. SDP is not responsible for any inadvertent errors that may occur in the publishing process.