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OSHA Issues Emergency Temporary Standard for COVID-19 Vaccination and Testing

Today, November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued the emergency temporary standard regarding COVID-19 Vaccination and Testing (the “ETS”) previously unveiled in President Biden’s COVID-19 Action Plan.  Employers with a total of 100 or more employees firm- or corporate-wide at any time the ETS is in place are bound by the requirements established in the ETS. The ETS does not cover workplaces that are subject to the Safer Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings subject to the OSHA Healthcare ETS.

The ETS explicitly preempts state and local laws.

The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements to address COVID-19 in the workplace. The key requirements of the ETS are:

  • Develop a policy for vaccination – Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers may elect to implement a policy allowing employees to not be vaccinated, but instead be tested weekly for COVID-19 and to wear a face covering at work.

  • Support employees choosing to get vaccinated – Employers must provide employees reasonable time, up to four (4) hours of paid time, to get vaccinated (this applies to both doses). The ETS also requires reasonable time and paid sick leave for employees to recover from any side effects they may experience from the vaccine.

  • Unvaccinated employees must be tested – Employers must ensure that each employee who is not fully vaccinated is tested at least weekly for COVID-19 (if the employee is in the workplace once a week) or within seven (7) days before returning to work (if away from the workplace for a week or longer). Employers are not required to pay for any costs associated with testing. However, employers may be required to pay for testing under other laws, regulations, or agreements.

  • Employees must notify their employer of a positive test – Employers must require their employees to notify them promptly after receiving a positive COVID-19 test result or diagnosis. Employers must immediately remove any employee who tests positive or is diagnosed with COVID-19, regardless of vaccination status. Employers must require employees who test positive or are diagnosed with COVID-19 to remain out of the workplace until they have met the criteria for returning to work. The ETS does not require employers to pay employees who are removed from work due to testing positive or being diagnosed with COVID-19.

  • Face coverings – Employers must require employees who are not fully vaccinated to wear a face covering when indoors or when operating a vehicle with another person. Any employee who elects to wear a face covering must be allowed to do so.

  • Provide information to employees – Employers must provide information at a readily understandable level to their employees concerning:  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 impose criminal penalties for knowingly supplying false statements or documents.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 308
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About this Author

Lilian Doan Davis, Polsinelli PC, Public Corporation Liabilities Lawyer, Whistleblower Claims Attorney
Associate

Lilian Davis helps private and public corporations, individuals, and municipalities identify and address potential liabilities. She brings a passion for the practice of employment law and a genuine interest in developing a strong relationship with her clients while gaining a thorough understanding of their business. Lilian understands the ongoing issues facing employers from a variety of perspectives. She counsels clients on management, compliance, and regulatory issues and investigates and responds to charges of employment discrimination. Her practice includes...

314.622.6669
Associate

Isaac Caverly focuses his practice on a wide variety of employment-related matters. Isaac is committed to understanding the industry in which clients operate and he provides valuable counsel to employers as they face sensitive workplace matters. His experience includes conducting discovery research and drafting memoranda related to employment cases and summary judgements as well as conducting employment due diligence for corporate transactions. Prior to joining Polsinelli, Isaac was a summer associate and served as a congressional intern and served as Co-President of the Iowa Student Bar...

816-218-1210
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