9 Nov
Covid-19 Vaccine – 5th Circuit Stays OSHA’s Emergency Temporary Standard
By
Erin E. Rome
November 9, 2021
OSHA published its Covid-19 Vaccination Emergency Temporary Standard on November 4. A link to the document can be found here. However, the 5th Circuit has stayed the implementation of the mandate effective November 6, 2021. Nevertheless, it is important for employers to track these issues as they develop and plan for any impact on your business. If ultimately implemented as written, the following are key points of the OSHA Mandate:
- The ETS required covered employers (private employers with 100+ employees) to ensure all unvaccinated employees working in-person begin wearing masks by December 5, 2021, and provide a negative Covid-19 test on a weekly basis beginning January 4, 2022.
- All requirements of the ETS, other than testing for unvaccinated employees, take effect 30 days after publication of the ETS in the federal register (that will happen Nov. 5, so it takes effect Dec. 5).
The ETS requires employers to do the following:
- Implement a mandatory Covid-19 vaccination policy, with or without an exception allowing employees to undergo weekly Covid-19 testing (beginning Jan. 4, 2022) and wear a face covering in the workplace (beginning Dec. 5, 2021).
- The exception for weekly testing is at the discretion of the employer. An employer may choose to require vaccination rather than allow for a testing option. However, even an employer who opts for the vaccination requirement must allow exceptions for certain individuals on the basis of medical necessity, disability, or sincerely held religious belief.
- Create a list showing the vaccination status of each employee, obtain proof of vaccination, and maintain these records. This needs to be kept confidential.
- Provide employees up to four hours of paid time to receive each primary vaccine dose (up to a maximum of 8 hours), and paid sick leave to recover from any side effects experienced following each primary vaccine dose (up to two days following each dose if they have side effects). This does not apply to booster shots.
- Ensure that each employee who is not fully vaccinated is tested for Covid-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
- Require employees to promptly provide notice when they receive a positive Covid-19 test or are diagnosed with Covid-19. This applies to both vaccinated and unvaccinated employees.
- Immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive test for Covid-19 and keep the employee out of the workplace until return to work criteria are met.
- Ensure that employees who are not fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except for in certain limited circumstances.
- Provide each employee with information about the requirements of the ETS and workplace policies and procedures to implement the ETS.
- Note that the requirements only apply to employees who report to the workplace. An employer could choose to keep employees entirely remote and would then not need to implement these requirements (but still could choose to do so).
The fact sheet from OSHA is a helpful guide and can be found here. OSHA has also put out a sample mandatory vaccination policy for employers that complies with the requirements.
Our firm will be following developments on this in the future.
