On November 5, 2021, OSHA published its Emergency Temporary Standard (ETS) governing COVID-19 vaccine and testing requirements for employers with 100 or more employees. The ETS contains a general compliance date of December 5, 2021, with certain testing requirements going into effect on January 4, 2022.
The 100-employee threshold requires employers to aggregate their employees at all locations across the United States, including part-time employees. Independent contractors and workers obtained from staffing agencies are not included in the threshold. Two or more related entities may be regarded as a single employer for ETS purposes, but franchisee entities are generally considered separate from the franchisor entity.
Covered employers will be able to choose between two compliance options for the vaccine requirements. Employers can implement a mandatory vaccine policy, with limited exemptions for medical or religious reasons. Under this option, employees are to complete vaccinations by January 4th or be subject to testing until such vaccinations are complete. Alternatively, employers can forgo a mandatory vaccine policy and require employees who choose to remain unvaccinated to undergo weekly testing and wear face coverings indoors. The testing program must be in place by January 4th.
Under either compliance option, employees must be provided with four hours of paid leave for obtaining vaccines and additional leave to recover from any side effects stemming from their vaccination. These leave requirements go into effect on December 5th.
All covered employers must record the vaccination status of all employees, both vaccinated and unvaccinated, and obtain from each employee acceptable proof of vaccination by December 5th. Exemptions should also be recorded. Rosters of vaccination status are considered confidential medical records.
Further, by December 5th, covered employers must establish and distribute a written vaccination policy addressing (1) the ETS requirements, (2) workplace policies and procedures, (3) vaccination efficacy, safety and benefits, (4) non-retaliation and non-discriminatory protections, and (5) criminal penalties for false documentation by employees.
On December 5th, all unvaccinated employees must begin wearing face coverings indoors and when in vehicles with others for work purposes. Testing programs for unvaccinated employees must be implemented by January 4th. Testing is not paid for by employers, unless required by other laws or collective bargaining agreements. Employers do not have to provide paid time off for testing, and the Department of Labor has stated that it will be publishing guidance on the compensability of testing time. Covered employers must maintain a record of each test result provided by each employee or obtained during tests conducted by the employer. These testing records are considered confidential medical records. Finally, the ETS requires covered employers to report work-related COVID-19 fatalities and hospitalizations.
OSHA asserts that the ETS preempts and invalidates any state or local law that bans or limits an employer’s authority to require vaccination, face covering, or testing. So far, twenty-six states and a sizable group of private businesses from across the country have challenged the legality of the ETS. Lawsuits have been filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. On November 6, 2021, the Fifth Circuit acted swiftly in one of the lawsuits by entering a nationwide stay that temporarily blocks enforcement of the ETS. It is unknown how long the Fifth Circuit’s stay will remain in effect. Federal statute dictates that the multiple lawsuits will be consolidated and transferred to one circuit chosen by lottery.This multi-circuit lottery is expected to take place on November 16, 2021. Despite the pending litigation, covered employers should continue to familiarize themselves with the ETS requirements and plan accordingly for the upcoming compliance dates.
Meredith Cavallaro Head of the Firm’s Employment Practice mc@pwlawyers.com http://www.pwlawyers.com/
About Paduano & Weintraub LLP
Paduano & Weintraub's Employment Group represents employers in all aspects of employment litigation and counseling. For companies of various sizes, ranging from large public companies to small family-owned businesses, we defend employers nationally, and across various industries, in state and federal actions and arbitrations brought by employees alleging discrimination, harassment and retaliation. We defend employers in single plaintiff and collective and class actions throughout the country alleging violations of the Fair Labor Standards Act and its state and local counterparts. We regularly represent employers in matters regarding restrictive covenants. We counsel clients in risk management by creating proactive solutions to workplace issues. We create and implement compliant and practical policies and best practices to help clients build a workplace infrastructure that balances business needs and legal compliance while mitigating short- and long-term risk. In that regard, we provide effective management-level training seminars and conduct employee harassment training and intervention. Our team responds to and manages the complex issues that arise from workplace crises, including high-profile sexual harassment complaints.
