The United States Department of Labor, Occupational Health and Safety Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) today that will be published on November 5, 2021.
The ETS will take effect immediately upon publication. It will remain effective until OSHA promulgates a permanent standard, which must occur within six months of the ETS’s publication in the Federal Register.
The ETS will not apply to state and local government entities in Pennsylvania, but it will be applicable to most private sector employers having 100 or more employees at any time while the ETS is in effect. Under the federal occupational health and safety law, the term, “employee” is broadly defined to include almost any employee, including part-time employees, at all employer locations within the United States.
The ETS requires covered employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of each employee’s vaccination status. Covered employers will also be required to establish, implement, and enforce a policy allowing employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering in the workplace or when occupying a vehicle with another person for work purposes.
The ETS also requires covered employers to provide up to four hours of paid time off to employees to get vaccinated against COVID-19, and to get each dose of the vaccine. The employees who get vaccinated because of the ETS must be granted reasonable paid time off by the employer for any sick leave if needed to recover from side effects following dose(s) of the vaccine. However, the ETS does not require employers to pay for any costs associated with testing employees who are not fully vaccinated for COVID-19.
Covered employers will be required to make certain information available to an employee, an employee representative (such as a labor union), including the aggregate number of fully vaccinated employees at a workplace along with the total number of employees in that workplace.
To an individual employee, covered employers will be required to make that employee’s COVID-19 vaccine documentation and any COVID-19 test results of that employee available for examination and copying. The same information must be made available to any other individual who has obtained the employee’s consent to receive that information.
Teleworking employees who do not work exclusively in a setting where no other employees are present, meaning that they sometimes work in an office or other setting where other employees are present, are subject to the requirements of the ETS if they are employed by a covered employer. How often the teleworking employee will be required to test for COVID-19, if the employee is not vaccinated, will depend on how often the employee reports to an office where other employees are present.
The usual exemptions apply, which means that employees may apply for either a religious or medical (or disability-related) exemption from the vaccination requirement if their employer is covered by the ETS.
All requirements of the ETS other than testing employees who have not received the dose(s) to be fully vaccinated will become effective on December 5, 2021. The ETS’s requirements for testing of employees who are not fully vaccinated will become effective on January 4, 2022.
