Employer Preparation for OSHA COVID-19 ETS on December 5 – Community News
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Employer Preparation for OSHA COVID-19 ETS on December 5

On November 5, the Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard (ETS) related to Coronavirus Disease 2019 (COVID-19), requiring employers with more than 100 employees to either: (1) COVID-19 vaccination policy; or (2) a policy requiring employees to choose between getting vaccinated or tested weekly for COVID-19 and wearing a face covering at work. See GT Alert, the COVID-19 vaccine/test mandate is here: what does it mean for employers? Subsequently, 26 states and numerous employers filed lawsuits to suspend enforcement of the ETS in several United States appellate courts. These lawsuits will soon be consolidated into multi-district litigation (MDL). A drawing of lots is used to determine which court will judge the merits of the case. Meanwhile, the Fifth Circuit Court of Appeals temporarily ordered enforcement of the ETS in BST Holdings v. OSHA, docket no. 21-60845 (5th Cir. Nov. 05, 2021) and has asked the parties to submit a statement as soon as possible regarding whether the court should issue a permanent injunction. Whichever appeals court is selected in the lottery will ultimately decide whether the 5th Circuit injunction is rescinded or upheld until the case is settled on the merits.

Until the appeals court issues an injunction on the enforceability of the ETS, covered employers must understand the upcoming December 5 ETS Effective Date and/or be willing to comply with the determinative policies, masking requirements, and employee training listed below:

  • Employers must develop a written vaccination and/or testing program for their staff. To this end, employers must obtain information about the vaccination status of their staff and develop and maintain a tracking system for collecting this information. Employers will use the same system to collect and track COVID-19 test results if they choose to implement a testing program for employees who choose not to be vaccinated. OSHA has provided examples of vaccination and/or testing and masking rules on its website. [Note: until the Supreme Court deems the ETS invalid, or a permanent injunction is issued prohibiting its enforcement, the ETS preempts any state law that prohibits or inhibits an employers’ ability to collect this information.]

  • Employers must ensure that unvaccinated employees adhere to mask requirements. Employers should also ensure that any policy complies with any state and/or local laws that are stricter than the ETS, for example jurisdictions that have mandatory in-house masking policies.

  • Employers must provide employees with four (4) hours of paid leave to receive all doses necessary for an employee to be considered fully vaccinated. Employers may not replace existing paid time off that an employee has accrued for paid leave with vaccination shots. However, an employer can replace the accrued paid time off with the two days he must give employees to recover from a vaccine reaction. Employers are not required to provide additional paid leave if an employee experiences a response that requires more than two days of work disability.

  • If an employer implements a vaccine mandate, such a policy must include a standard protocol for evaluating requests for religious and disability waivers for testing and masking. This is especially important when an employer mandates vaccination, because in such a case the employer must pay the costs of testing employees who are lawfully exempt from its vaccination requirement. (This is in contrast to cases where an employer does not mandate vaccination, in which case an employer does not have to pay for testing employees who choose not to be vaccinated). This policy should also take into account guidelines targeting religious exemptions, issued by EEOC Committee Chair Burrows on Oct. 25, 2021, and further updated Oct. 28. See GT Alert, “EEOC Issues Guidance on Title VII and Religious Objections.”

  • Employers will be required to provide employees with educational materials in a language their employees can understand about the following: (1) the requirements of the ETS and the workplace policies and procedures it implements in response; (2) a copy of the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information on protection against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly providing false statements or documentation. These documents can be found on the OSHA website.

Assuming the ETS continues to apply, employers must comply with further requirements by January 4, 2022. Until then, employers must prepare to comply with the December 5 requirements. Planning for implementation will help employers assess whether to adopt a vaccination mandate or a policy that provides for vaccination or testing.

© 2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 314