Late Friday, the Sixth Circuit lifted the nationwide injunction on OSHA’s COVID-19 Emergency Temporary Standard which requires employers with 100 or more employees to ensure that all employees are either fully vaccinated by January 4, 2022, or undergo weekly COVID-19 testing. This decision has now been appealed to the United States Supreme Court.
In the interim, OSHA has posted the following information regarding its implementation and enforcement plans for employers:
“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
Employers should act prudently and take immediate steps to ensure compliance by dates communicated by OSHA.
Here is a quick refresh on what is required under the ETS for covered employers:
Covered Employers:
Employers with a total of 100 or more employees at any time the ETS is in effect. Employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors are exempt from these mandates. The 100 employee count includes multiple employer locations. For example, the ETS states “If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.”
Vaccinations and Testing:
All covered employers must ensure that their employees have received either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson by January 10th, or after January 10th, covered employers must ensure that all unvaccinated employees are tested on a weekly basis. Additionally, employers may impose a mandate that is stricter than federal law, such as requiring vaccinations without the option of weekly COVID-19 testing,
Pay:
Covered employers are required to provide reasonable paid time off (up to four hours per dose) for their employees to get vaccinated and a reasonable amount of time (up to two days) to recover from any vaccine side-effects that prevent them from working. Employers cannot require employees to use existing paid time off to receive the vaccine. Employers can require employees to use their paid time off to recover from the side effects. If an employee does not have any paid time off available, then the employer must pay for this time. Employers may also choose to provide a separate leave bank for this purpose.
Although the ETS does not require covered employers to pay for COVID-19 testing, Oregon law conflicts with this and employers will generally have to pay any out of pocket expenses and time in some situations. Accordingly, employers may want to consider a stricter policy than what the ETS requires to avoid potentially significant expense.
Policy:
Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. Again, masks are required for Oregon employers.
Notices:
Employers must provide employees the following information in the applicable language and literacy level:
- The requirements of the ETS and workplace policies and procedures established to implement the ETS;
- The CDC document “Key Things to Know About COVID-19 Vaccines”;
- Protections against retaliation and discrimination;
- Laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Cascade members can find all of this information on our COVID-19 Resource Center.
Records:
Covered employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to provide information to employees upon request about the number of fully vaccinated employees and the total number of employees at a workplace.
Workplace Removal:
Covered employers must require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; keep removed employees out of the workplace until they meet criteria for returning to work.
What do you need to do by January 10th?
- Policy requiring employees to be fully vaccinated or a testing and masking policy as an alternative option.
- Keep record of the vaccination status of all employees.
- Provide reasonable time off (up to 4 hours of paid time for each dose) to receive the vaccine, and reasonable time and paid sick leave to recover from any side effects.
- Require face coverings for all unvaccinated employees. However, Oregon already has stricter requirements in place for all employees, even fully vaccinated ones.
- Provide employees the required information previously mentioned in the “Notices” section.
- Report work-related COVID-19 fatalities and hospitalizations to OSHA within 8 hours (death) and 24 hours (hospitalization).
- Make records available for examination to employees and anyone having written consent by the end of the following business day.
- Make available the number of fully vaccinated employees.
By February 9th, employers must also:
- Require weekly testing for all employees who are unvaccinated if such employees are in the workplace at least once a week.
- For employees not in the workplace once a week, testing within seven days before returning to work if they have been out of the workplace for seven days or longer.
Cascade is actively monitoring this issue and will provide more information as we learn more.