Updated: Nov 29, 2021
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its highly anticipated emergency temporary standard (ETS). This standard reflects the policy and goals announced by the Biden administration in September to get all workers vaccinated. OHSA’s ETS is expected to cover about two-thirds (2/3) of private-sector employees, roughly 76 million workers. Although the ETS is commonly framed as a vaccine mandate, employees still have options regarding their vaccination status.
ARE YOU REQUIRED TO GET THE COVID VACCINE?
Not necessarily. All private companies that employ 100 or more employees must require that employees either (1) become fully vaccinated or (2) wear a mask and submit to weekly COVID-19 tests (mask-and-test). Fully vaccinated, as defined by the ETS, means two doses of the Pfizer or Moderna vaccine or one dose of the Johnson and Johnson vaccine (full vaccinations do not require a booster). Partial vaccinations do not meet the ETS requirements, and therefore employees will either need to receive their second dose or mask-and-test until fully vaccinated. The vaccination and testing requirements will become effective on January 4, 2022. However, unvaccinated employees will begin wearing masks starting on December 5, 2021.
The ETS requires that employers provide paid time off (PTO) of up to four hours for employees to receive the vaccination. This PTO may also be used to recover from vaccine side effects that prevent an employee from working. In the event that an employee chooses to mask-and-test, the employer is not responsible for the costs of the weekly COVID-19 tests.
WHAT EMPLOYEES ARE COVERED UNDER THE ETS?
Employees of companies that employ 100 or more employees must comply with the requirements of the ETS. There are some exceptions, however, to which employees are covered under the ETS. The exceptions include:
employees from staffing agencies
employees who work fully from home (a vaccine or mask-and-test must be done if an employee ever returns to the office)
employees who work completely outdoors
The ETS focuses on workplace safety and does not apply to those who work entirely remote or are independent contracts. However, employees who work on a hybrid schedule will be covered under the ETS’ requirements. A good rule of thumb: if you ever go into the office or are around co-workers you will need to be vaccinated or mask-and-test.
EXCEPTIONS TO THE VACCINE MANDATE
The ETS does provide employees with the ability to apply for medical or religious exemptions to the vaccine. Employers are instructed to implement their own policies for requesting exemptions. Although an employee may receive an exemption from being required to receive the vaccine, they will still be required to comply with the mask-and-test weekly requirements. The way in which OSHA worded the ETS allows employers to comply with the ETS without fear of violating Title VII of the Civil Rights Act or the Americans with Disabilities Act (ADA).
WHAT AN EMPLOYER CAN REQUIRE OF EMPLOYEES
Under the ETS, employers are required to notify covered employees of any policies initiated to comply with the ETS or to train employees on new workplace policies. The ETS also requires employers to maintain sufficient proof that employees are either vaccinated or following the mask-and-test protocols. Employers will require cover employees to submit:
a record of immunization from the employee’s health care provider;
a copy of the COVID-19 vaccination card; or
a signed and dated employee attestation (stating that you received a vaccine)
Employers are also required to provide employees with CDC materials regarding vaccines, notices that employers are unable to discriminate against civil rights, and notice that the ETS provides for criminal penalties if knowingly false statements are submitted.
WILL THIS RULE ACTUALLY HAPPEN?
There is likely to be heavy debate surrounding OSHA’s new policies. Politicians on either side of the aisle will campaign for and against the ETS and its various provisions. These legal challenges are especially anticipated from attorney generals in states that oppose the vaccine. EMPLOYEES SHOULD BE AWARE THAT THE ETS PRE-EMPTS ANY STATE LAW OPPOSING VACCINE MANDATES. Therefore, even if you believe that your state has outlawed required vaccinations, the OSHA ETS has overridden that. From an initial interpretation of the ETS, it is likely that it will pass judicial scrutiny. The mandate provides several alternatives for employees who oppose the vaccine.
This OSHA release can be confusing and determining whether it applies to you as an employee can be even more difficult. Our knowledgeable team of employment attorneys at Fiffik Law Group are able to assist you in any matters relating to the vaccine and its effect on your employment. If you feel as though you may be affected, please call our office at (412) 391-1014.