The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published an Emergency Temporary Standard (ETS) regarding COVID-19 vaccination and testing requirements for covered employers.  The ETS was officially published on Friday, November 5, 2021, and is currently in effect.

Employers with a total of 100 or more employees at any time the ETS is in effect are covered by the ETS, and are required to either (1) develop and enforce a mandatory COVID-19 vaccination policy, or (2) implement a policy allowing employees to choose to be fully vaccinated or to be subject to testing requirements and certain mask-wearing rules.

Most rules in the ETS require compliance by covered employers within 30 days of publication of the ETS (December 6, 2021), while compliance with testing requirements must be achieved within 60 days of publication (January 4, 2022).  This means that by January 4, 2022, employees of covered employers that decide to implement a mandatory vaccination policy must be fully vaccinated, or, if the employer does not implement a mandatory vaccination policy, the employees must be compliant with the employer’s testing and mask-wearing rules (or be fully vaccinated).

ETS Highlights for Covered Employers:

  • Beginning on December 6, 2021, covered employers must provide paid time off to employees for time spent getting vaccinated. Employers must also provide paid leave if time is needed to recover from side effects resulting from the vaccine.
  • Costs associated with employee testing under the ETS do not have to be covered by the employer, unless the employer is so required under other laws, regulations or agreements. Similarly, employers are not required to pay for masks for employees who are required to wear masks.
  • By December 6, 2021, employers must determine the vaccination status of each employee, obtain proof of that status and maintain records and a roster of each employee’s status.
  • “Fully vaccinated” means a person’s status 2 weeks after receiving a COVID-19 vaccine in a one-dose series, or 2 weeks after receiving the second dose of a COVID-19 vaccine in a two-dose series.
  • Employees must provide the employer with prompt notice of a positive COVID-19 test or diagnosis, and the employer must then remove that employee from the workplace (regardless of vaccination status) and not allow the employee to return until certain criteria are met.
  • Unvaccinated employees who are in the workplace at least once per week must be tested at least weekly, while unvaccinated employees who are away from the workplace for a week or longer must be tested within 7 days before returning to the workplace.
  • Generally, unvaccinated employees must wear a mask when at an indoor workplace, or when in a vehicle with another person for work purposes.

Please contact one of the employment law attorneys at Dvorak Law Group if you have questions regarding this information or if you have specific questions and recommendations regarding your business.