November 29, 2021

Volume XI, Number 333

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It’s Finally Here: OSHA Reveals COVID-19 Vaccine Rule for Private Sector

The OSHA Emergency Temporary Standard is hot off the presses — now what? Undoubtedly, there will be lots and lots of discussion and legal challenges over the next several days. Although this is not an in-depth analysis, here are the nuts and bolts:

In general, the ETS:

  • Applies to employers with 100 or more employees company-wide, but not to employers who are covered by the federal government contractor requirements or a healthcare employer covered by the prior healthcare ETS.

  • Preempts state or local law limiting vaccination, masking, or testing requirements.

  • Does not apply to employees working from home or exclusively outdoors.

  • Effective dates:

    • 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination doses

    • 60 days after publication: Testing for employees who have not completed entire primary vaccination doses

What About Paid Time Off to Get the Vaccine?

As expected, the ETS requires employers to provide paid time off to employees related to the vaccine:

  • Up to four hours to get each dose of the vaccine.

  • Reasonable time/paid sick leave to recover from any side effects from the vaccine.

What About the Testing Option?

Employees who do not want to be vaccinated can be tested. Here are some general guidelines:

  • Employees not fully vaccinated must undergo weekly testing.

  • Employers do not have to pay for testing.

  • All employees (vaccinated or not) must notify the employer of a positive COVID-19 test and cannot come to the workplace until they meet the return-to-work criteria.

Although OSHA does not address the pay issue, with your non-exempt employees you need to remember that the DOL will be looking for compliance with the Fair Labor Standards Act. In general, (1) if you have your employees pay for the weekly tests, make sure it doesn’t take them below the minimum wage, and (2) consider whether the time they spend being tested counts as compensable time.

Masking Requirements

The ETS provides that employees who are not fully vaccinated must wear masks indoors or when they are in vehicles with a coworker, unless it creates a serious workplace hazard (e.g., interferes with the operation of equipment).

What About OSHA Reporting?

Yes, there are still reporting requirements related to employees with work-related COVID-19.  You need to report an employee work-related COVID-19 fatality within eight hours of learning about it. You also need to report an employee’s work-related COVID-19 inpatient hospitalization within 24 hours of learning about it.

Your Policy and Recordkeeping

You will need to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception if you are going to permit weekly testing. You will need to review proof of every employee’s vaccination status and keep records about it. You also will need to:

  • Maintain records/roster of vaccination status for your employees.

  • Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee or anyone having written authorized consent from that employee.

  • Make the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace available to an employee or an employee representative.

What You Need to Provide to Employees

You will need to provide each employee — in a language and at a literacy level understandable to your employees — with the following:

  • Information about 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;”

  • Information about protections against retaliation and discrimination; and

  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 308
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About this Author

Anne Knox Averitt Labor Attorney Bradley Law Firm
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Anne Knox Averitt has extensive experience in labor and employment matters and commercial litigation. She works in the Birmingham office and represents clients of all sizes, from Fortune 500 companies to family-owned businesses in a number of industries, including retail, automotive, natural resources, manufacturing, healthcare, non-profit, communications, construction, and financial services. She also handles cases before arbitrators, administrative law judges, and federal and state court judges.

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J. William Manuel Litigation Attorney Bradley Jackson, MI
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Will Manuel focuses his practice primarily on commercial and employment litigation. He has handled various disputes for both large and small businesses in both Mississippi and other jurisdictions.

Will's clients include numerous manufacturers and commercial interests as well as various insurance and financial services companies. He has worked to defend these clients in both MDL litigation and individual actions brought in Mississippi. Will also has experience in advising businesses on issues involving age discrimination, sexual harassment and...

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Anne R. Yuengert Employment Attorney Bradley Birmingham
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Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

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John P. Rodgers Employment Attorney Bradley Nashville
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John Rodgers helps employers solve their employment-related problems. His practice is three-fold. First, he counsels clients on the numerous situations that can arise related to their employees, including termination and disciplinary decisions, reasonable accommodation issues under the Americans with Disabilities Act (ADA), wage-and-hour issues under the Fair Labor Standards Act (FLSA) and state law, and Family and Medical Leave Act (FMLA) problems. His goal is to work with clients in a practical, problem solving way.

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Stephanie Gaston Labor Employment Houston Attorney Bradley Arant Boult Cummings LLP
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As an experienced counselor and litigator, Stephanie Gaston’s practice is focused on resolving labor and employment matters for private employers, public entities and nonprofits. She also represents school districts, and governmental entities. Stephanie regularly defends companies facing discrimination, harassment, retaliation, class actions, and other claims under federal, state, and local laws, including the Fair Labor Standards Act, Title VII, ADA, FMLA, USERRA, and the Texas Commission on Human Rights Act. She advises and counsels employers on minimizing the risks of litigation,...

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