The Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standard on Nov. 5, 2021, requiring employers with 100 or more employees to ensure employees get vaccinated or test weekly for COVID-19 and wear a mask. This was sent to the U.S. Circuit Court and allowed to stay in effect. The Supreme Court has agreed to take up the legal challenges to the OSHA ETS and will hear oral arguments on Jan. 7, 2022. The ETS remains in effect until then, after which its fate will be decided by the high court. Businesses should continue to prepare for compliance. According to an OSHA update, covered employers will have until Jan. 10, 2022, to comply with all requirements except the weekly testing of unvaccinated workers. Weekly testing may be delayed until Feb. 9, assuming the employer is making reasonable, good-faith efforts to come into compliance.
By January 10, 2022:
☐ Establish a written policy requiring employees:
- To be vaccinated against COVID-19 no later than Jan. 10, 2022, with no weekly testing option; or
- To choose between being vaccinated by Jan. 10, 2022, or providing proof of negative COVID-19 tests weekly starting on Feb. 9, 2022.
☐ Determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of employees’ vaccination statuses.
☐ Provide up to four hours of paid time for employees to receive each vaccination dose (for a total of up to eight hours) during work hours. This paid time must be in addition to any leave already accrued by the employees.
☐ Provide reasonable time and paid sick leave (up to two days) to recover from side effects experienced following each vaccine dose. Employers may require the use of existing paid sick leave or PTO (where sick and vacation time are combined), but may not require the use of existing, stand-alone paid vacation time. If an employee does not have existing paid leave available, the employer must still provide the paid time off. Advancing paid leave is not an option.
☐ Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person.
☐ Provide each employee with information about the OSHA’s emergency temporary standard (ETS), workplace policies and procedures related to the standard, vaccination efficacy, safety and benefits, protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false documentation.
Ongoing while the OSHA Requirement is in effect:
☐ Require employees to promptly provide notice of a positive COVID-19 test or a COVID-19 diagnosis.
☐ Remove from the workplace any employee who receives a positive COVID-19 test or a COVID-19 diagnosis.
☐ Report work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within 24 hours.
☐ Make certain records available to an employee and/or the employee’s representative upon request, including COVID-19 vaccine documentation and any COVID-19 test results related to the employee, the aggregate number of fully vaccinated employees at a workplace, and the total number of employees at that workplace.
By Feb. 9, 2022:
☐ If the vaccination policy includes a testing option in lieu of vaccination, ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
Re: SHRM.org
