January 30, 2023

Volume XIII, Number 30


January 30, 2023

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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.

© 2023 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 308

About this Author

Anne Knox Averitt Labor Attorney Bradley Law Firm

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