One of the most challenging issues for large employers in 2021 has been figuring out what to do with the OSHA Vaccination and Testing Emergency Temporary Standard (the “ETS”), which requires that private employers with more than 100 employees implement a mandatory COVID-19 vaccination or weekly testing policy for all employees.
Employers were originally required to comply with most provisions of the ETS (including issuing a policy and determining the vaccination status of employees) by December 5, 2021, and then begin testing unvaccinated employees by January 4, 2022. However, just as many employers were preparing policies, a federal court issued a temporary stay blocking the ETS.
On December 17, 2021, a federal appellate court lifted the temporary stay of the ETS. According, the ETS is back in effect as of now, and employers will be required to comply with the ETS unless the Supreme Court of the United States orders otherwise. Shortly after the appellate court lifted the stay, OSHA issued a statement explaining the dates by which it intends to enforce the ETS requirements. Specifically, OSHA stated that it “will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
As it stands now, employers must implement most of the ETS requirements by January 10, 2022, including but not limited to the following:
• Communicate to employees a policy consistent with the ETS requirements;
• Verify the vaccination status of employees;
• Require unvaccinated employees to wear masks indoors (with limited exceptions, and allowing for potential accommodations);
• Provide employees with up to four hours of paid time off to receive a vaccination (employees cannot be required to use their own accrued PTO);
• Provide employees with up to two days of paid time off to recover from vaccination side effects (depending on the type of PTO policy a company has, employees can be required to use their own accrued PTO for this);
• Provide specific written notices to employees (which can be contained within the policy provided to employees);
Then, by February 9, 2022, any employees who have not submitted proof of full vaccination, must be tested for COVID-19 on at least a weekly basis. Employers can, but are not required to, pay for that testing program.
It is possible that the Supreme Court of the United States will stop the ETS. However, it appears unlikely that the Supreme Court will do so before the January 10th implementation deadline. The Supreme Court has announced that it will hold a hearing on the legal challenges to the ETS (along with challenges to the separate vaccine mandate applicable to healthcare workers, which is currently stayed) on Friday, January 7, 2022 – just one business day before the January 10th implementation deadline. The Supreme Court almost never issues a decision on the same day it holds a hearing.
Given the January 10th deadline, we recommend that employers prepare a policy now and plan to issue that policy no later than January 10th, unless the Supreme Court issues a decision before then. Such a policy is not one-size-fits-all. Rather, employers have several choices to make, including (1) whether to mandate the vaccine for some or all employees, or whether to simply require unvaccinated employees to be tested; (2) whether to pay for testing; (3) whether to provide testing on-site; and (4) whether to require employees to use their own accrued PTO in the event of side effects or whether to offer additional paid time off benefits (which depends in part on the type of paid time off program you have).
If you do not yet have a policy ready, it is not too late, and we can help. We can help you prepare a policy, vaccination certification forms, and a communication to employees that satisfies all requirements of the ETS. And we can help you implement a strategy for when to issue the policy and what to do depending on what happens at the January 7th Supreme Court hearing. If you would like assistance on these issues, please reach out to a member of our Employment Practice Group.