Federal Law Alert: Court Halts OSHA’s Vaccination-or-Testing ETS
On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees.
The current ruling is temporary, but we expect to learn soon whether it will be extended.
OSHA Vaccination and Testing Emergency Temporary Standard (ETS)
On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.
The ETS requires employers to (1) develop, implement and enforce a mandatory COVID-19 vaccination policy; or (2) create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.
Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status.
Weekly Testing Requirements
Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.
Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.
The first deadline for employers subject to the OSHA ETS is December 5. We will continue to provide updates about the ETS, including updates about the status of legal challenges. Please do not hesitate to reach out to us with any questions you may have.