This morning, the United States Department of Labor (DOL) published its much-anticipated Emergency Temporary Standard (ETS) concerning COVID-19 vaccination and testing. The ETS was issued at the directive of President Biden and sets forth the details of the mandate that certain employers require their employees to become fully immunized against COVID-19 or, alternatively, to submit to weekly COVID-19 testing and wear face coverings in the workplace. DOL has also released other materials, including fact sheets, a webinar and sample policies, to assist employers in complying with the ETS.

In this blog, I will summarize some of the salient aspects of the ETS. Note that the requirement that employees become fully vaccinated or submit to weekly testing will become effective on January 4, 2022. All other aspects of the ETS will become effective on December 5, 2021.

Which employers are subject to the ETS?

The ETS applies to most private employers with at least one hundred employees company-wide, including employees who are full-time, part-time, temporary or seasonal. Independent contractors are not counted for purposes of determining an employer’s size.

Certain large private employers are not subject to the ETS because they are covered by other federal rules and regulations. These include federal contractors and subcontractors, and employers whose employees provide healthcare or healthcare support services (which are covered by a separate emergency temporary standard).

While the ETS does not currently apply to employers with fewer than one hundred employees, DOL’s fact sheet makes it clear that the ETS could be expanded to cover smaller employers in the future. It states that OSHA requires additional time to determine whether it is feasible for smaller employers to comply with the ETS.

The ETS also applies to state and local government employers with at least one hundred employees, but only in states with safety plans approved by the Occupational Health and Safety Administration (OSHA).

What obligations do employers have concerning vaccination, testing and face masks?

Under the ETS, employers have a number of obligations concerning vaccination, testing and face masks. It is important to note that the ETS sets out the minimum obligations of employers. It does not prevent employers from adopting stricter or more protective policies and protocols.

First, employers must develop a policy requiring employees to become fully vaccinated or submit to weekly COVID-19 testing and wear face masks in the work place. To be clear, employers are not required to provide employees with a weekly “test out” option, and may instead implement a straightforward mandatory vaccination policy. According to the ETS, its provisions override any state or local law or regulation barring employers from requiring vaccination, testing and/or mask-wearing.

If an employer implements a mandatory vaccination policy without a “test out” option, the employer still must make exceptions for employees: (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to reasonable accommodations under federal law because they have a disability or sincerely held religious belief that conflicts with vaccination requirements. If an employer permits an employee in one of these categories to be present in the workplace, the employee must comply with the ETS’ mandatory testing and mask-wearing requirements (and the employer’s policies must address those requirements). However, employees need not follow vaccination or testing requirements if they: (1) do not report to a workplace where other people are present; (2) work from home; or (3) work exclusively outdoors.

Second, employers must take certain steps to facilitate their employees becoming vaccinated. Employers must provide employees up to four hours of paid time off for each vaccination dose. This paid time off is in addition to time off available under the employers’ usual policies; employees cannot be made to use other accrued paid time off or sick leave. Employers must also provide a “reasonable” amount of paid time off to recover from side effects experienced after each vaccination dose.

Third, for employers who choose to provide employees with a “test out” option, the employer must ensure that each employee who is not fully vaccinated, and who is in the workplace at least once per week, is tested for COVID-19 at least weekly and wears face coverings while at work. The ETS does not require employers to pay for costs associated with testing, although payment may be required by other laws, employment contracts or collective bargaining agreements.

Fourth, employers must require employees, regardless of vaccination status, to provide prompt notice if they test positive for or are diagnosed with COVID-19. Employers must remove such employees from the workplace and prohibit them from returning until they meet the criteria for doing so.

What notices must employers provide to employees?

Employers are obligated to provide employees with certain information and to present that information in the language and at the literacy level that its employees can comprehend. The information to be imparted includes: (1) the requirements of the ETS and the specific workplace policies and procedures the employer has adopted in order to comply with the ETS; (2) a document published by the Centers for Disease Control and Prevention entitled “Key Things to Know About COVID-19 Vaccines”; (3) information about employee protections against retaliation and discrimination; and (4) information about criminal penalties that may be imposed against an employee who knowingly supplies false statements or documentation.

What record-keeping requirements does the ETS impose upon employers?

Employers must obtain and keep proof of their employees’ vaccination status, and treat this proof as confidential medical information under, among other laws, the Americans with Disabilities Act. Employers must permit an employee, or his/her authorized representative, to examine and/or copy the employee’s vaccination or testing documentation.

Employers must also create a roster of their employees’ vaccination status. The employer is not required to permit its employees to inspect the roster, but must make available to any employee or his/her authorized representative the total number of employees in the workplace and the number of those employees who are vaccinated.

What information must an employer report to the government?

Employers must report to OSHA in certain instances. Specifically, the employer must report any work-related COVID-19 in-patient hospitalizations to OSHA within 24 hours of learning of them, and any work-related COVID-19 deaths within 8 hours of learning about them. However, employers need not submit their policies to OSHA unless requested.

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If you have any questions concerning the ETS or mandatory vaccination policies, please contact Jessica M. Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.