January 20, 2022

Volume XII, Number 20

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OSHA Issues Emergency Temporary Standard Vaccination/Testing Rules

Today the Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees).  Essentially, it requires employers with 100 or more employees to establish, implement, and enforce a written mandatory vaccination policy that requires each employee to be fully vaccinated against COVID-19 by January 4, 2022 or the employer must implement a policy that allows employees to choose between being fully vaccinated or both tested and wearing a face covering.  Testing of unvaccinated employees must take place once every 7 days and testing must begin on January 4, 2022.

WHICH EMPLOYERS DOES THIS APPLY TO?

The ETS applies to most employers with 100 or more employees at any time (this includes part-time employees, seasonal employees and temporary workers but not independent contractors).

EMPLOYER DUTIES

Employers must require vaccinated employees to provide proof of vaccination status. The employer must maintain a record of the vaccination status of all employees and treat it like a medical record.

The following are deemed as an acceptable proof of vaccination:

  • record of immunization from a healthcare provider or pharmacy;

  • a copy of the COVID-19 Vaccination Record Card;

  • a copy of medical records documenting the vaccination;

  • a copy of immunization records from a public health, state, or tribal immunization information system; or

  • a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering the vaccine.

The employer must also maintain a record of each test result provided by the unvaccinated employee. The Department of Labor can request records to confirm compliance and most records must be provided by end of next business day.   These records must be maintained for as long as this ETS is in effect.

The employer must: (i) provide a reasonable amount of time to each employee for each of their primary vaccination series dose(s); and (ii) provide up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose.  Notably, this duty to pay for time spent getting vaccinated goes into effect on December 5, 2020 (earlier than the testing requirement).  Note, however, if the employee gets vaccinated during off hours, there is no duty to pay the employee during this time. The employer must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.  Here in New Jersey, given the duty to provide sick leave to all employees, this should not be an issue.

EMPLOYEES EXEMPT FROM THE REQUIREMENTS

No vaccination requirement applies to those employees for whom the vaccine is medically contraindicated.  The same goes for those employees for whom medical necessity requires a delay in vaccination or who are entitled to a reasonable accommodation under civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

There are some common-sense exceptions as well. For example employees (1) who do not report to a workplace where other individuals, such as coworkers or customers, are present; or (2) work from home; or (3) who work exclusively outdoors need not be tested or vaccinated.

REQUIREMENTS FOR UNVACCINATED EMPLOYEES

For those employees who are not vaccinated and report to work where others are located, they must be tested once every 7 days.  Only those tests that have been approved or authorized by the FDA and that are administered in accordance with authorized instructions are acceptable.  Note, employees may not self-administer and self-read their own tests unless the test is observed by the employer or an authorized telehealth proctor.  In other words, you cannot simply take the employee’s word when they say they took a home test and are negative.

There is no requirement that the employer pay for testing.  However, if the employee refuses vaccination based upon a religious or medical exemption, the employer must still perform the same sort of reasonable accommodation analysis it would perform under any other circumstance to determine if paying for such testing would be an undue burden.

If an unvaccinated employee fails to be tested every 7 days, the employee must be removed from the workplace.  There is no requirement that such an employee receive any paid time off as a result.   For those unvaccinated employees who test positive for COVID, the testing requirement is suspended for 90 days.

Unvaccinated employees must wear face coverings.  There is no requirement that the employer pay for these face coverings.  Much like the vaccination requirement, if an employees has a religious or medical objection to doing so, reasonable accommodations may be provided.

© 2022 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume XI, Number 309
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About this Author

Ari G. Burd, attorney at Giordano Law Firm, Labor & Employment New Jersey Cannabis Law, Health Care
Shareholder

Ari devotes his time to assisting and defending employers with regard to traditional employment issues. He frequently counsels employers for compliance with New Jersey laws and has extensive transactional and litigation experience.

Ari has litigated employment matters throughout the state, having made appearances in almost every Superior Court in New Jersey, as well as before both Federal District Courts in New Jersey and the Federal and State Courts in New York.  These actions have involved a diverse range of claims such as wrongful discharge, discrimination, harassment,...

732-741-3900
Jeri L. Abrams, Giordano Halleran, Employment Documentation Lawyer, Workplace Litigation Attorney,Labor & Employment
Shareholder

Jeri focuses primarily on employment law, with an emphasis on drafting and negotiating complex employment-related documentation, such as executive employment, consulting, restrictive covenant, commission, bonus, retention, change-in-control and severance agreements. Jeri counsels employers on a broad range of employment matters, including hiring, disciplining and terminating employees, family and medical leaves, disability leaves and accommodations, anti-discrimination and anti-retaliation laws, wage and hour compliance, and reductions in workforce. She works closely...

732-741-3900
Jay S. Becker, Giordano Law Firm, Labor & Employment, Cannabis Law, Corporate Labor Relations Employment Law and Litigation
Shareholder

Jay, chair of the Labor and Employment Practice Area, devotes his practice to labor relations and employment law and litigation on behalf of management. His experience includes conducting trials, hearings, arbitration and mediation sessions; responding to state and federal administrative agency charges; collective bargaining; drafting employment-related corporate documents such as restrictive covenants, employee handbooks, employment agreements, various stock and compensation plans, and separation/severance agreements. He counsels employers on all employee relations issues including, but...

732-741-3900
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