Today the Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees).  Essentially, it requires employers with 100 or more employees to establish, implement, and enforce a written mandatory vaccination policy that requires each employee to be fully vaccinated against COVID-19 by January 4, 2022 or the employer must implement a policy that allows employees to choose between being fully vaccinated or both tested and wearing a face covering.  Testing of unvaccinated employees must take place once every 7 days and testing must begin on January 4, 2022.

WHICH EMPLOYERS DOES THIS APPLY TO?

The ETS applies to most employers with 100 or more employees at any time (this includes part-time employees, seasonal employees and temporary workers but not independent contractors).

EMPLOYER DUTIES

Employers must require vaccinated employees to provide proof of vaccination status. The employer must maintain a record of the vaccination status of all employees and treat it like a medical record.

The following are deemed as an acceptable proof of vaccination:

• record of immunization from a healthcare provider or pharmacy;

• a copy of the COVID-19 Vaccination Record Card;

• a copy of medical records documenting the vaccination;

• a copy of immunization records from a public health, state, or tribal immunization information system; or

• a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering the vaccine.

The employer must also maintain a record of each test result provided by the unvaccinated employee. The Department of Labor can request records to confirm compliance and most records must be provided by end of next business day.   These records must be maintained for as long as this ETS is in effect.

The employer must: (i) provide a reasonable amount of time to each employee for each of their primary vaccination series dose(s); and (ii) provide up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose.  Notably, this duty to pay for time spent getting vaccinated goes into effect on December 5, 2020 (earlier than the testing requirement).  Note, however, if the employee gets vaccinated during off hours, there is no duty to pay the employee during this time. The employer must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.  Here in New Jersey, given the duty to provide sick leave to all employees, this should not be an issue.

EMPLOYEES EXEMPT FROM THE REQUIREMENTS

No vaccination requirement applies to those employees for whom the vaccine is medically contraindicated.  The same goes for those employees for whom medical necessity requires a delay in vaccination or who are entitled to a reasonable accommodation under civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

There are some common-sense exceptions as well. For example employees (1) who do not report to a workplace where other individuals, such as coworkers or customers, are present; or (2) work from home; or (3) who work exclusively outdoors need not be tested or vaccinated.

REQUIREMENTS FOR UNVACCINATED EMPLOYEES

For those employees who are not vaccinated and report to work where others are located, they must be tested once every 7 days.  Only those tests that have been approved or authorized by the FDA and that are administered in accordance with authorized instructions are acceptable.  Note, employees may not self-administer and self-read their own tests unless the test is observed by the employer or an authorized telehealth proctor.  In other words, you cannot simply take the employee’s word when they say they took a home test and are negative.

There is no requirement that the employer pay for testing.  However, if the employee refuses vaccination based upon a religious or medical exemption, the employer must still perform the same sort of reasonable accommodation analysis it would perform under any other circumstance to determine if paying for such testing would be an undue burden.

If an unvaccinated employee fails to be tested every 7 days, the employee must be removed from the workplace.  There is no requirement that such an employee receive any paid time off as a result.   For those unvaccinated employees who test positive for COVID, the testing requirement is suspended for 90 days.

Unvaccinated employees must wear face coverings.  There is no requirement that the employer pay for these face coverings.  Much like the vaccination requirement, if an employees has a religious or medical objection to doing so, reasonable accommodations may be provided.