President Biden directed the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more workers to require that employees be vaccinated against COVID-19, or undergo weekly testing.
OSHA released almost 500 pages of materials, so we are still working our way through the implications. And predictably, lawsuits challenging this new ETS have already been filed. So- stay tuned, we will continue to update you as we have more information.
At first blush, the highlights include:
- Employees must be fully vaccinated by January 4, 2022, and employers must require unvaccinated employees to mask and produce a negative test on at least a weekly basis. Unlike the federal government mandate—employees under the OSHA standard have a choice. They can choose to either vaccinate or to test weekly and mask.
- Employers are required to have a written vaccination policy and are required to maintain records of vaccination and testing status (no more just looking at the card!).
- If the employee works from home, outside, or at a workplace without other people, the ETS does not apply.
- Employers can require the employees who choose to test (instead of getting vaccinated) to pay for those tests (unless there is another law or collective bargaining unit that prevents this approach). But – proceed with the caution here. If the employee is testing because s/he is entitled to an accommodation and cannot get vaccinated, the employer may need to pay for the test.
- Employers must require masks for anyone who is not vaccinated, but employers do not need to pay for the masks.
- Employers must pay employees for the time it takes to get vaccinated.
- Employers must report COVID-19 fatalities and hospitalizations to OSHA.
- Failure to comply will cost you—initially, serious violations could result in a maximum fine of $13,653, with a cap for willful or repeat violations at $164,532. But there is the option to raise these fines to $70,000 and $700,000.
OSHA also issued a few Fact Sheets
- Summarizing the new ETS
- Summarizing why the ETS was deemed necessary
- Workers’ Rights under the new ETS
- Summarizing Penalties for False Statements and Records under the new ETS
- Summarizing Reporting COVID-19 Fatalities and In-Patient Hospitalities
We are working to update our mandatory vaccine policies to incorporate these new OSHA requirements—if you are a client and want to discuss what policy works best for your workplace, please reach out.
As noted, this story is developing. So stay tuned, and please reach out if you have questions!
Meredith S. Campbell
Chair Employment and Labor Group
Chair Corporate Investigations, Governance & Risk Management
Email firstname.lastname@example.org T(301)255-0550