In its Guidance titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” the Occupational Safety and Health Administration “strongly encouraged employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects,” and further suggested that employers should also “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing.”
Some major employers have already begun to require parts of their workforce to get vaccinated. However, most have not, and a large segment of the public continues to resist being vaccinated.
As the effort to increase vaccinations has largely stalled, the Delta variant (and newer variants) have been wreaking havoc, with new cases, hospitalizations and fatalities increasing dramatically.
Rather than continue to wait for the private sector to mandate vaccinations, President Joe Biden announced Thursday that OSHA will soon be issuing an Emergency Temporary Standard that will apply to all private sector employers with 100 or more employees. These employers will have to require their employees to (1) get fully vaccinated, or (2) be tested for COVID every week. Employers will also be required to provide paid time off for employees to be vaccinated or to recuperate from side effects of the vaccines.
An Emergency Temporary Standard does not have to go through the lengthy, formal rulemaking process that applies to regulations. It can be issued after the administration determines that “employees are exposed to a grave danger” from exposure to COVID-19 and that an ETS is “necessary” to protect them from such danger.
In June, OSHA issued a similar ETS that applied to health care services employers.
The President’s announcement did not provide any details about when the ETS would be issued. Penalties for failure to comply with the ETS would be up to $13,653.
Although the intent of the President’s announcement is clear, the details are not yet known.
For example, we assume that the 100-employee threshold would apply organization-wide as opposed to specific worksites, but that has not been made clear.
Although the announcement says that employees must be given paid time off to get the vaccinations, nothing has yet been said about those who continue to decline vaccination and must be tested once a week, nor does it address who pays for the testing, whether employees are paid for the time that they are being tested, or whether time off should be given for the testing even if unpaid.
If OSHA is trying to incentivize people to get vaccinated, it would seem to make sense for the unvaccinated employees to be responsible for the logistics and expense related to the weekly testing.
Tammy C. Woolley is Senior Counsel in the Opelika, Alabama, office of Constangy, Brooks, Smith & Prophete, LLP, and can be contacted at email@example.com. This article is adapted from a recent e-newsletter published to our clients.