On September 9, 2021, the White House’s “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan,” directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require testing of any workers who remain unvaccinated.
Today, November 5, 2021, OSHA’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard” was published in the Federal Register.
The ETS applies to all workplaces with 100 or more employees that are under OSHA’s authority and jurisdiction. The ETS is intended to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing. However, the ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or to those covered by OSHA’s Healthcare ETS.
In pertinent part, OSHA’s COVID-19 Vaccination and Testing ETS requires employers to either implement a mandatory COVID-19 vaccination policy OR to implement a policy requiring employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering while at the workplace.
The ETS also requires employers to provide reasonable paid time off to employees for receiving each dose of the vaccine as well as to recover from the side effects of the vaccination. The ETS does not, by itself, require employers to pay for the costs of COVID-19 testing, however other state and federal laws may require payment for testing. Employers are encouraged to speak to a labor and employment attorney prior to making any determinations as to payment for employee COVID-19 testing.
Pursuant to the ETS, employers must also ensure various safety measures are implemented, including immediate exclusion of COVID-19 positive employees from the workplace and providing employees with information about the workplace policies established, protections against retaliation, and civil penalties for knowingly supplying false statements or documentation.
The ETS is effective immediately upon publication in the Federal Register. Accordingly, employers must ensure all requirements (other than testing) are implemented in their facilities within 30 days of publication and that the testing requirements are implemented within 60 days of publication. It is likely, however, that this ETS will be subject to legal challenges.
Employers who are covered by this ETS are advised to connect with a Kerr Russell labor and employment attorney to discuss implementation of the requirements to ensure full compliance with this legal obligation.
About the authors:
Mark C. Knoth chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.
Olivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.
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Practice AreasLabor, Employment, Employee Benefits and ERISA