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Tammy C. Woolley: OSHA’s standard on COVID vaccinations takes effect
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Tammy C. Woolley: OSHA’s standard on COVID vaccinations takes effect

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Yesterday, the Occupational Safety and Health Administration issued its Emergency Temporary Standard on COVID vaccinations.

Most employers with 100 or more employees will have to require their employees to get vaccinated, or wear masks and get tested weekly. Although the ETS is effective immediately, it will not be enforced until Dec. 5, will be in effect for six months, and exempts certain employees whose exposure to others would be limited.

Here are some of the highlights.

What about state OSHA plans?

States with OSHA-approved state plans are required to adopt the ETS or a standard that is as effective as the ETS within 30 days. If not, OSHA may begin the process to withdraw its approval of the state plan and resume federal jurisdiction in the state.

What about states with bans on vaccine mandates or masking?

OSHA takes the position that the OSH Act preempts state laws addressing an issue covered by an OSHA standard, and therefore these bans are not enforceable. But look for lots of litigation on this issue.

Are any employers with 100 or more employees not “covered” by the ETS?

Yes. Any federal contractor who is covered by the vaccine guidance issued by the Safer Federal Workplace Task Force will be automatically deemed to be in compliance with the ETS, as will federal employers covered by President Biden’s Executive Order 14043.

Which employees are exempt?

The ETS does not apply to employees who telecommute, work exclusively outdoors, or work in remote locations with no co-workers or encounters with customers.

Who pays for testing?

Unvaccinated employees can be required to pay for their testing, and even their face masks. (But please note that requiring employees to pay could violate various state laws and also create wage and hour issues under the federal Fair Labor Standards Act and state wage-hour laws.)

How frequently must an unvaccinated employee be tested?

Every seven days.

Who pays for vaccinations?

The employer is required to pay for the vaccinations and must pay the employee for reasonable time to get vaccinated (up to four hours), as well as for time spent recuperating from any side effects of the vaccine.

Who counts toward the 100 employees?

Both part-time and full-time employees of the entire business at all locations in the United States are included in the count. Independent contractors are not included.

Employees of staffing agencies are considered employees of the agency, not the “host employer.” Employees of franchisors and franchisees are considered separate. Employees who are exempt from the ETS (for example, telecommuters) are still included in computing the 100-employee threshold.

What about reasonable accommodation for medical, religious or other reasons?

OSHA defers to the EEOC guidance and also indicates that unvaccinated employees may seek accommodations for the testing alternative.

Does the employer have to maintain a roster of vaccinated employees?

Yes, and it must have acceptable evidence of an employee’s vaccinations or COVID test results, and is required to compute the aggregate number of vaccinated employees versus the total number of employees at each worksite.

What is considered “fully vaccinated”?

Two weeks after the second dose (or single dose for one-dose vaccines).

Are employees who had COVID exempt?

No exceptions for “natural immunity.”

Are there any training or policy requirements for covered employers?

Yes. Employers who are covered must publish a written policy, either mandating vaccines or providing the vaccine/testing alternative, and provide information to employees about the safety, efficacy, and benefits of vaccination.

When does this take effect?

The standard is effective today. Most requirements must be met within 30 days, except for COVID-19 testing for employees who are not fully vaccinated, which must be completed within 60 days.

Tammy C. Woolley is senior counsel in the Opelika, Alabama, office of Constangy, Brooks, Smith & Prophete LLP and can be contacted at twoolley@constangy.com. This article is adapted from a recent Legal Bulletin published to our clients.

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