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November 4, 2021

COVID-19 UPDATE: OSHA Emergency Temporary Standard - COVID-19 Vaccination Policy

On Thursday, November 4, 2021, the United States Occupational Safety and Health Administration (“OSHA”) released its long-promised Emergency Temporary Standard (“ETS”) requiring “covered employers” (employers with 100 or more company-wide employees) to develop, implement and enforce a mandatory COVID-19 vaccination policy. We recommend that any covered employers review OSHA’s website and/or the full text of the ETS for complete details, however, we have also linked OSHA’s “Summary Handout” and “Fact Sheet,” which include abbreviated information.

In short, under the ETS, covered employers must either make COVID-19 vaccinations mandatory or, as an alternative, adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Employers do not have to pay for face coverings or testing under the ETS, though OSHA notes there may be employer-pay requirements under other laws, regulations, collective bargaining agreements or otherwise. Notably, OSHA has provided model policy templates for the two ETS options:

As indicated, the ETS applies only to “covered employers.” It further requires that employers provide paid time to workers to get vaccinated (up to four hours for each dose) and allow for “reasonable” paid leave to recover from any side effects from the vaccine.

A summary of other ETS employer requirements includes:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee, along with the aggregate number of fully vaccinated employees and total number of employees at a workplace.
  • Provide employees the following: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know about COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

The ETS will become effective tomorrow and employers will be required to comply with most of its provisions within 30 days. Employers will have longer—60 days—to comply with the delineated testing requirements.

Lastly, we expect that OSHA will be aggressive in its enforcement of the new ETS, thereby creating significant civil exposure to covered employers. To that end, the OSH Act currently allows for the following penalties for any OSHA violations: $13,653 for “Serious” or “Other-Than-Serious” violations; $13,653 per day for “Failure to Abate” violations; and $136,532 for “Willful or Repeat” violations. It is our understanding—and we have not seen OSHA clarify this issue—that ETS violations will be considered on a “per-employee” basis. For example, if an employer is found to have ten employees who are in violation of the ETS, it would be not one general violation but ten separate and citable violations.

Relatedly, the proposed federal “Build Back Better” bill includes a provision seeking to significantly increase the maximum fines which OSHA may issue. Under the bill’s current iteration, OSHA would be permitted to increase penalty amounts from $13,653 to $70,000 for “Serious” violations and from $136,532 to $700,000 for “Willful or Repeat” violations. Therefore, if passed, this will expose employers to unprecedented civil penalties for all OSHA violations, not just those related to the new ETS.

Moving forward, we expect widespread legal challenges to the ETS, though it is unknown at present how those will fare. We will monitor and report on any significant developments. Please contact us if you have questions in the interim.

Gery Chico, Jonathan Leach, and William Klinger
Chico & Nunes, P.C.

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