OSHA issued its Emergency Temporary Standard (ETS) in early November. A series of challenges quickly ensued, resulting in a stay of the ETS and a consolidation of the cases before the Sixth Circuit. On December 17, 2021, the Sixth Circuit lifted the stay. OSHA has indicated that it will delay enforcement of the ETS deadlines
On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements…
Update – On November 6, 2021 the Fifth Circuit Court of Appeals issued a temporary stay of the ETS.
On November 4, 2021, OSHA issued an unpublished version of its long-awaited Emergency Temporary Standard (ETS) as to COVID-19 vaccination or testing requirements covering most private employers with 100 or more employees. The ETS is scheduled to be published and take effect on November 5, 2021. As summarized below, the ETS requires covered employers to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing. It should be noted that these are “minimum” requirements, such that employers are not prohibited from establishing more stringent policies, and do not supplant the requirements of a collective bargaining agreement.
Employers will have 30 days, or until December 5, 2021, to comply with all non-testing requirements of the ETS, and 60 days, or until January 4, 2022, to comply with testing requirements for employees who have not received all doses required for primary vaccination. Under the Occupational Safety and Health Act (OSH Act), an ETS serves as a proposal for a permanent standard, and the OSH Act calls for the permanent standard to be finalized within six months after publication of the ETS (29 U.S.C. 655(c)(3)).
For purposes of the ETS, a covered employer is one with 100 or more employees “at any time” during the effective period of the ETS. This means that employers who meet this minimum threshold as of the effective date of the ETS are covered throughout the effective time of the ETS, even if the employer later falls under the minimum employee threshold. For any employer that falls short of 100 employees as of the effective date but reaches the threshold at any point that the ETS is in effect, the employer will become subject to the ETS requirements as of the date they meet the threshold and remain covered for the remaining duration of the ETS, even if the employer later reduces staff such that it falls under the threshold. To calculate the number of employees, all part-time and full-time employees must be accounted for, regardless of where they work (including those that work at home). However, independent contractors are not included in the calculation. Also, employees supplied to a customer site by staffing companies only count toward the staffing company’s employee total; they do not count toward the customer company’s total. Similarly, as to franchisee-franchisor relationships, their respective employees count only toward their own calculation, not the other party’s employee count (i.e., a franchisee’s employees count only toward the franchisee’s calculation, and not the franchisor’s count). The ETS excludes: (1) Employers that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and (2) certain settings where any employee provides healthcare services or healthcare support services.
The ETS specifies that the requirements apply only to employees who visit an employer’s indoor locations where other people are present. Employees who work exclusively at home, outdoors, or at a site where the employee is the only person present are not required to comply with the employer’s requirements. However, should such an employee later be required to, or seek to, visit one of the employer’s indoor facilities, the employee must satisfy the vaccination or testing requirements.
Reasonable accommodations/Exceptions to policy
The ETS requires employers to provide reasonable accommodations and exceptions for employees (i) for whom the vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
As to the vaccination requirements, the employer is required to provide an employee with time to obtain and recover from a vaccination. Specifically, the employer must provide up to four hours of paid time, inclusive of travel time, at the employee’s regular pay rate, to obtain a vaccine. The employer must also provide reasonable paid time off to recover from any side effects of each dose of a vaccine.
Continue Reading OSHA issues COVID-19 ETS for large private employers
As addressed in Part 1 of this article, the Pennsylvania Department of Health (DOH) issued new orders on November 17, 2020 targeted at mitigating the recent surge of COVID-19 cases within the Commonwealth in recent weeks. Part 1 focused on the new face covering requirements now imposed on all Pennsylvanians. This article focuses on new the requirements for testing and quarantine following out-of-state travel established by the DOH and the impact that the new travel requirements might have on Pennsylvania employers.
New out-of-state travel requirements
The Order of the Secretary of the Pennsylvania Department of Health for Mitigation Relating to Travel, mandates that individuals traveling into the Commonwealth from any other state – regardless of whether the individual resides in another state and is travelling to Pennsylvania or the individual is a Pennsylvania resident returning from out-of-state travel – produce evidence of a negative COVID-19 test from a specimen collected within 72 hours prior to entering the Commonwealth. Individuals who do not have a negative COVID-19 test are required to quarantine for 14 days, and may only leave their homes to receive testing or other necessary medical services. Failure to comply with the order may result in the imposition of a fine ranging from $25.00 to $300.00. These newly instituted requirements take effect on Friday, November 20, 2020.
Continue Reading Pennsylvania employers and employees receive the gift of new post-travel testing/quarantine requirements for the holiday season (Part II)