January 27, 2022

Volume XII, Number 27

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OSHA Issues Long-Awaited COVID-19 "Emergency Temporary Standard"

Good (and Not So Good) Things Come to Those Who Wait

Yesterday, the Occupational Safety and Health Administration ("OSHA") of the U.S. Department of Labor ("DOL"), at long last, issued an "Interim final rule" regarding the scourge of COVID-19 and what large employers will be required to do about it. The rule includes "an emergency temporary standard ('ETS') to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination."

Timing

The "effective date" of the ETS is today, November 5, 2021, but the "compliance date" for most of the initial obligations in the ETS is 30 days after the effective date, meaning December 5, 2021 (see specifics below).

However, the provision that mandates COVID-19 testing for employees who are not fully vaccinated requires compliance within 60 days of the effective date. That date is January 4, 2022.

"Covered employers" must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

The ETS involves sweeping and in many ways unprecedented regulation of both private and governmental workplaces. It is complicated and predictably vast – as in 490 pages. It will obviously take time for everyone concerned – employers and employees – to digest the new standard, its express requirements, and the as-yet unknown, but probable unintended consequences.

FAQs

In the meantime, here are selected significant requirements set forth in the ETS itself or related "FAQs" published by the DOL:

Covered employers: There is a 100-employee threshold for coverage by the ETS. In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. Employees included among the 100-employee minimum include part-time employees and temporary and seasonal workers employed directly by the employer while the ETS is in effect.

Notably, the determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the ETS (November 5, 2021).

If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the ETS.

If an employer with 100 employees as of November 5, 2021, subsequently drops below the 100 threshold, it is still subject to the ETS.

If an employer with less than 100 employees as of November 5, 2021, subsequently increases to at least 100 employees, it then will be subject to the ETS for the duration of the ETS even if the employer later goes below 100 employees.

What about employees who work remotely from home or work exclusively outdoors? While they count to determine whether an employer meets the 100 employee threshold, these employees are not subject to the ETS and do not have to be vaccinated or tested weekly.

Local government employers: The ETS will apply to governmental employers in North Carolina with 100 or more employees.

Employers in healthcare settings: The ETS will not apply to employees in settings covered by the Healthcare ETS (which was issued on June 17, 2021) while that ETS is in effect, but it will be necessary for employers with employees covered by the Healthcare ETS to determine whether they also have employees covered by this ETS.

Federal Contractors and Subcontractors: The ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 workplace safety guidelines.

Mandatory vaccination policy: Covered employers will be required to adopt one which sets forth many of the provisions of the ETS. An employer must be able to provide its policy within 4 business hours upon request by OSHA. If an employer currently has a COVID-19 policy, it needs to be reviewed and updated to make sure it complies with the specifics of the ETS such as vaccine requirements, exclusions to vaccine, how information will be collected, paid leave for vaccine, notification process for positive test or diagnosis, removal from workplace, and disciplinary action for employees who do not comply with the policy. If an employer does not have a COVID-19 policy currently, it must have one in place by December 5, 2021.

Determination of Employee Vaccination Status and Roster of Employees in Each Category: Must be accomplished by December 5, 2021.

Employer Support for Employee Vaccination: Employer must provide up to 4 hours of paid leave per shot for an employee who misses work to get the vaccine, and the employer cannot utilize the employee's PTO or sick leave to satisfy this requirement. In addition, the employer must pay for a "reasonable time" for employees to recover from the side effects of the vaccine for time missed from work. OSHA suggests that 2 days of pay would be reasonable, and the ETS does allow employers to utilize an employee's PTO or sick leave for this payment. However, if the employee does not have any PTO or sick leave, the employer must pay the leave with new money and cannot advance/borrow future leave.

Testing for Employees Who are Not Fully Vaccinated: Must start by January 4, 2022. Employees must take an approved test no more than 7 days prior to coming to work and be able to present the negative test upon reporting to work.  If an employee teleworks and only comes into the office once a month, that employee does not have to test weekly.  In this instance, the employee would have to test negatively no more than 7 days prior to coming into the office.

Employee Notification to Employer of a Positive COVID-19 Test and Removal: Must remove employee from work and follow CDC guidelines prior to returning to work.

Face Coverings: Must be worn by unvaccinated employees indoors except (1) when alone in a closed room, (2) briefly when eating or drinking, (3) when wearing a respirator, or (4) when it would be hazardous (or defeat the purpose of the job) or medically contraindicated to wear a mask.

Information Provided to Employees by December 5, 2021: Employers must provide specific information to employees, such as the employer vaccination policy, the process to determine vaccination status, the leave pay the employee is entitled to receive for the vaccine, the process for reporting a positive COVID test, and the procedure used for requesting records.

Reporting COVID-19 Fatalities and Hospitalizations to OSHA: Employer must report work–related COVID hospitalizations to OSHA within 24 hours and work-related COVID deaths to OSHA within 8 hours.

Duration: It appears that the ETS will be in effect at least until May of 2022 and could be longer if OSHA believes that it should continue beyond that time frame.

Conclusion

These are complex regulations, and it is likely many companies will face challenges with compliance plan design and implementation.

© 2022 Ward and Smith, P.A.. All Rights Reserved.National Law Review, Volume XI, Number 309
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About this Author

McKinley Ken Gray Labor & Employment Attorney
Labor and Employment Attorney

Ken leads the Labor and Employment practice.  His practice experience encompasses various areas of employment-related litigation.  He advises clients and litigates cases involving all forms of employment discrimination, wrongful discharge, and breach of employment contracts from small start-up companies to Fortune 500 corporations.  Ken is a frequent lecturer on employment discrimination, workplace retaliation, workers' compensation, and wage and hour law issues.  He has been rated by his peers as being "preeminent" in his fields of law and serves in leadership roles with various legal and...

252-672-5476
Grant Osborne, Labor Employment Attorney, Ward Smith Law Firm
Labor and Employment Attorney

Grant's practice experience of more than 30 years encompasses a wide range of issues that arise in employment and labor law.  He provides counsel to clients in the health care, financial, hospitality, construction, business services, employee staffing, and non-profit sectors.  Grant represents clients in state and federal courts as well as administrative agencies.  He regularly advises employers of all sizes and litigates civil cases regarding all forms of employment discrimination, wrongful discharge, unlawful retaliation, contractual issues, personnel policies and...

828.348.6077
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