OSHA COVID-19 Vaccination and Testing Enforcement Begins
On January 10, 2022, the Occupational Safety and Health Administration (OSHA) began its enforcement of all the requirements of the COVID-19 Vaccination and Testing ETS (“ETS”), except for those requirements pertaining to weekly testing of unvaccinated employees.
Enforcement of the ETS Could Once Again Be Stayed. On Friday, January 7, 2022, the U.S. Supreme Court (the “Court”) heard oral arguments both for and against the emergency motion to reinstate the stay of the ETS. This stay, if granted, would be in place while the case makes its way through the U.S. Court of Appeals for the Sixth Circuit, which still must hear and determine the legality of the ETS on the merits. We await the Court’s decision; early signs indicate a split among the Justices of the Court. Although the Court may reinstate a stay of OSHA’s enforcement of the ETS, that has not yet occurred.
What Does This Mean for Employers? For employers with 100 or more employees, this means that the employer must now be able to show good faith efforts to comply with the ETS, including by:
(1) developing and implementing a written vaccination policy (either a mandatory vaccination policy or a vaccination and testing in lieu thereof policy);
(2) determining the vaccination status of each employee (including establishing a secure system to store and maintain associated records); and
(3) providing written communication to each employee about: (a) the requirements of the ETS, including relevant workplace policies, (b) the CDC document “Key Things to Know About COVID-19 Vaccinations,” (c) information about protections against retaliation and discrimination, and (d) laws that provide for criminal penalties for knowingly supplying false statements or documentation.
In addition, employers must ensure that employees who are not fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person for work purposes. Employers must also provide up to four hours of paid time off for an employee to receive each vaccination dose and reasonable paid sick leave to recover from side effects experienced following each dose. For more information about the requirements of the ETS, see OSHA's Summary of the ETS and OSHA’s Frequently Asked Questions.
Weekly Testing of Unvaccinated Employees – February 9th. OSHA’s enforcement of the ETS requirements pertaining to weekly testing of unvaccinated employees will begin on February 9th, unless before then the judicial stay is reinstated. Employers should therefore consider preparations to “flip a switch” to rollout testing of any unvaccinated employees on February 9, 2022.
Employers Covered Under EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”), even though enforcement of Executive Order 14042 (“EO”) has been stayed. However, employers with “mixed” workforces (i.e., partially federal contractor and partially commercial), and federal contractors who are not covered by the EO (i.e., do not yet have any “covered” contracts as the term is defined by the Guidance) should now determine whether the ETS is applicable to any or a portion of its workforce and workplaces.
