ASHLEY L. ORLER

Partner

BRITTANY BERMUDEZ

Associate

OSHA Issues COVID-19 Emergency Temporary Standard

November 19, 2021

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its COVID-19 Emergency Temporary Standard (the “ETS”), requiring certain employers to develop, administer and enforce a mandatory COVID-19 vaccination policy or mandate employees to submit to weekly COVID-19 testing and to wear face coverings when indoors.

Covered employers must comply with most requirements by December 6, 2021 and must comply with testing requirements by January 4, 2021. Multiple lawsuits were filed challenging the ETS. After the 5th Circuit Court of Appeals issued a stay of the ETS, OSHA announced that it is suspending implementation and enforcement of the ETS pending developments with the courts. On November 17, 2021, a federal judicial panel assigned the 6th Circuit Court of Appeals to handle the over 30 cases filed challenging the mandate.

If the ETS survives the legal challenges, businesses with more than 100 employees will have to comply. Here is an overview of the requirements:

1. Which Employers Are Covered?

Private employers with 100 or more employees company-wide must comply with the ETS. Part-time, full-time, temporary and seasonal employees in the United States are counted towards the 100-employee threshold. Contractors are not included.

2. How Do Employers Determine if They Meet the 100-Employee Threshold for Coverage Under the ETS if They Have a Fluctuating Workforce?

If an employer had more than one hundred (100) employees on November 5, 2021, the ETS will apply for the duration of the standard (6 months), regardless of fluctuations in the size of the employer’s workforce. If the employer has fewer than one hundred (100) employees on November 5, 2021, but subsequently increases its workforce to more than one hundred (100) employees at any point during the six (6) month standard period, the employer is then required to comply with the ETS.

3. Can an Employer Require That its Employees Use Personal or Sick Leave Time to Get Vaccinated?

No. An employer is expected to provide a reasonable amount of time to its employees during work hours for each of their primary vaccination dose(s), including up to four hours of paid time, at the employee’s regular rate of pay and without requiring that its employees use personal or sick leave time.

4. Is an Employer Required to Provide Paid Time Off to its Employees if They Test Positive for COVID-19?

No. While an employer is not required to provide paid time off to an employee as a result of a positive COVID-19 test or diagnosis of COVID-19, paid time off may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

5. If an Employee Visits the Workplace Only One Time During the Month, Does the Employee Need to Submit to Weekly COVID-19 Testing?

No. If an employee visits the workplace only one (1) time during the month, for example, the employee need not be tested for COVID-19 on a weekly basis. However, the employer must ensure that the employee is tested for COVID-19 within seven (7) days prior to the employee visiting the workplace and receive documentation of a negative COVD-19 test upon the employee’s return to the workplace.

6. Does the Employer Pay for the Cost of Weekly Testing?

No, not under the ETS. Employers may be required to pay for such costs under other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

7. Are Medical or Religious-Based Exemptions Allowed Under the ETS?

Yes. The ETS allows for reasonable accommodations for employees for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those with disabilities or sincerely held religious beliefs that conflict with the vaccination requirement. Employers should review EEOC guidance and ensure their company policies comply with such guidance as well as federal, state and local laws.

8. Are Vaccination Records and Roster Considered Confidential Medical Records?

The records and roster required by the ETS are considered to be employee medical records and must be maintained confidentially and separately from personnel files.

If you have any questions about these requirements or need assistance in navigating the ETS, please do not hesitate to contact any of the attorneys in GCT’s Employment Law Practice Group.