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Medium to Large Employers Have 30 Days to Implement Vaccination & Testing Program

Medium to Large Employers Have 30 Days to Implement Vaccination & Testing Program Background Image

The Occupational Safety and Health Administration (“OSHA”) has published its long-awaited emergency temporary standard (“ETS”) on COVID-19 vaccination, testing and face coverings, effective as of today (November 5, 2021), and applicable to employers with 100 or more employees. The ETS is a federal OSHA regulation — however, “State Plan” states, which have their own OSHA-approved framework, must adopt the ETS or an “at least as effective” emergency rule within 30 days. OSHA notes in FAQs that it anticipates the ETS will be in effect for six months.

Here are the ETS’s major requirements, organized by deadline:

  1. What do we have to do within 30 days?

By December 6, 2021 (which is a Monday), employers covered by the ETS need to:

  • Establish, implement, and enforce a written vaccination policy or “vaccination or testing” policy. The ETS provides a choice, as employers may institute: (1) a written mandatory vaccination policy and/or (2) a written policy providing employees with a choice of (a) full vaccination or (b) providing proof of regular testing and wearing a face covering.  The ETS provides for exemptions for employees legally entitled to a reasonable accommodation due to a disability or for religious reasons, or for whom the vaccine is medically contraindicated or is required to be delayed due to medical necessity.
  • Get proof of vaccination status and establish a recordkeeping system. Determine, and have proof of, the vaccination status of each employee, and establish a roster of each employee’s vaccination status.  Employers must also be prepared to provide: (i) certain records to certain authorized requestors with as little as one business day’s notice; and (ii) the Assistant Secretary of Labor with their written vaccination (or vaccination and testing) policy, as well as certain aggregate data regarding employees, with just four business hours’ notice.
  • Provide paid time off. “Support” COVID-19 vaccination by providing an employee reasonable time — and “up to 4 hours paid time, including travel time” — for the purpose of “each of their primary vaccination dose(s),” as well as “reasonable time and paid sick leave to recover from side effects” for each dose.
  • Institute notification requirements. Require employees to promptly notify the company when they are diagnosed with, or test positive for, COVID-19.  These persons will then need to be removed from the workplace.  The ETS does not require employers to provide paid time to these persons as a result of their removal from the workplace, although it notes that paid time may be required by other laws, regulations or collective bargaining agreements (“CBAs”).
  • Require face coverings. Ensure that employees who are not fully vaccinated wear face coverings when “indoors” and “when occupying a vehicle with another person for work purposes,” except in certain situations.
  • Inform employees. Provide employees “in a language and at a literacy level [they] understand” with (1) information about the requirements of the ETS, as well as any employer policies and procedures established thereunder, (2) an additional, specific document about COVID-19 from the Centers for Disease Control and Prevention, (3) information about certain OSHA prohibitions against discrimination or retaliation on the basis that an employee has reported a work-related injury or illness or exercised given rights under the Occupational Safety and Health Act, and (4) information about statutes that provide for criminal penalties associated with knowingly supplying false statements or documentation. 
  • Report COVID-19 fatalities and hospitalizations to OSHA. Employers must report work-related COVID-19 fatalities or in-patient hospitalizations to OSHA within the time periods set forth in the ETS.
  1. What do we have to do within 60 days?

By January 4, 2022 (which is a Tuesday), employers covered by the ETS need to:

  • Ensure compliance with a testing program for those not fully vaccinated. Ensure that each employee who is not fully vaccinated has been tested for COVID-19 according to the requirements of the ETS, which vary according to the frequency with which an employee reports to a workplace.  Note that employees who have completed the entire primary vaccination by January 4, 2022, but whose 2-week waiting period has not expired, do not have to be tested.  The ETS does not require the employer to pay for the costs associated with testing, although, again, it notes an employer may be required to do so by other laws, regulations, or CBAs.  Employees who do not provide required documentation of testing must be kept “removed from the workplace.”
  • Records of COVID-19 testing. Employers must keep records of COVID-19 test results and must have additional records available (as described in answer to question 1 above) within 30 days of the ETS’ implementation.
  1. Which employees are subject to the ETS vaccination and testing requirements?

The ETS applies to:

  • All employers that have 100 or more employees. This includes but is not limited to shipyard, marine terminal, longshore and construction employers; as well as agricultural establishments that either have eleven or more employees engaged in hand-labor operations in the field on any given day or that maintain a temporary labor camp (regardless of the number of employees engaged in hand-labor operations in the field).

The ETS does not apply to:

  • Employees of covered employers: (i) “while working from home”; (ii) “who work exclusively outdoors”; or (iii) “who do not report to a workplace where other individuals . . . are present.”
  • Employer workplaces: (i) covered under the Safer Federal Workforce Task Force’s Guidance for Federal Contractors and Subcontractors (read more here); or (ii) where any employee provides health care or healthcare support services, which are subject to a separate, newly released ETS.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.