The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) yesterday, compelling employers with 100 or more employees to either mandate COVID-19 vaccination or require face covering and weekly testing of their employees.
Specific provisions include:
- Coverage. The ETS applies to employers with 100 or more employees. Excluded are employees who work from home, who do not appear at a worksite with other employees or customers, or who work exclusively outdoors.
- Basic requirements.
- Employers must create a written (and posted) policy requiring employees to be fully vaccinated, or to undergo weekly COVID-19 tests and to wear face coverings.
- Exceptions to this policy are limited to medical exemptions and religious objections.
- Tracking and record keeping.
- Employers must determine the vaccination status of all employees and require each employee to provide sufficient proof of vaccination.
- Employers must maintain records and a roster of each employee’s vaccination status.
- Support for vaccination.
- Employers must provide up to four hours of paid time off to employees to get vaccinated.
- Employers must provide a reasonable amount of paid time off for employees to recover from the potential effects of vaccination.
- Removal of non-complying employees. Employers must remove employees who are not vaccinated and who fail to undergo requisite testing and face covering requirements.
- Disclosure to employees. Employers must make available to employees an employee’s own vaccine documentation, and information about the number of vaccinated employees versus unvaccinated employees at the workplace.
- Effective date.
- The ETS became effective on November 5, 2021.
- The deadline to implement a policy is December 6, 2021.
- Requirements for testing of non-vaccinated employees become effective on January 4, 2022.
- Enforcement. OSHA may impose penalties of up to $13,653 for violations of the ETS. OSHA may also impose penalties for “Willful” or “Repeated” violations of up to $132,532 per such violation.
There are numerous petitions in federal courts across the country seeking to prevent enforcement of the ETS. Various petitioners argue that the ETS is either unconstitutional, or beyond the authority of the OSHA statute. It is thus possible that the ETS will be enjoined by a federal court, and then likely heard by federal appellate courts and the United States Supreme Court. We will provide important updates as they occur.
The ETS, along with supporting arguments concerning authority and rationale, is here. https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard (the ETS appears at the end of the document).
If you have questions contact Cavitch attorneys Max Dehn, [email protected] and Morgan Schweighoefer, [email protected].