OSHA Issues Emergency Temporary Standard Requiring Employee Vaccination or Testing for all Employers with 100 or More Workers
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring businesses with at last 100 employees company-wide, regardless of how many employees are in any given location, to either require all employees to be vaccinated for COVID-19 or require unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering at work. In the 22 states with OSHA-approved State Plans, employers must comply with state occupational safety and health requirements. Businesses can check whether their state has a plan that covers private employers here: https://www.osha.gov/stateplans/. The new ETS does not apply to remote workers who never come to a workplace or those who exclusively work outside (although they must be included in the headcount to determine whether an employer is covered by the ETS). Additional information can be found in the FAQ: https://www.osha.gov/coronavirus/ets2/faqs.
Employers have 30 days to comply with most provisions of the ETS, by December 5, 2021 (a Sunday), including the employee mask wearing and testing requirement. January 4, 2022 is the deadline for employees to complete their vaccinations. After a 30-day public comment period, there may be changes to the ETS.
In order to comply with the new ETS, covered employers must determine each employee’s vaccination status (i.e., partially or fully vaccinated or unvaccinated), obtain acceptable proof of vaccination from employees, maintain records of each employee’s vaccination status, keep a roster of each employee’s vaccination status and/or maintain records of weekly mandatory testing and masking for unvaccinated employees. Booster shots are not required by the ETS. Employers are advised to maintain vaccination records separately from an employee’s general personnel file in order to protect the privacy of health-related information, as required by the Americans with Disabilities Act. As is already required in New York State, employers must also grant up to four hours of paid time to receive each vaccination dose. Employees should be given a reasonable amount of time and paid sick leave to recover from any side effects experienced following each vaccination dose.
In addition, employers must provide their written policy and information about the ETS to affected employees and let them know about anti-discrimination and anti-retaliation protections, as well as penalties for knowingly supplying false documentation or information. Employers are encouraged to direct affected employees to the Centers for Disease Control information page on vaccines: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
Employers must report a work-related COVID-19 fatality to OSHA within 8 hours of learning about it. Employers have 24 hours to report work-related COVID-19 in-patient hospitalizations.
If you have any questions about the new mandate, please contact Valerie K. Ferrier, Co-Chair of Kane Kessler’s Labor & Employment Practice Group, at 212-519-5107, or firstname.lastname@example.org.