On Friday, the Occupational Safety and Health Administration (OSHA) published the emergency temporary standard (ETS), which requires private sector employers with more than 100 employees to require COVID 19 vaccination or weekly testing. The ETS requires employers to ensure vaccination and begin testing on January 4, 2021. Following the announcement of the new guidance, GLI released the following statement.

In the guidelines and FAQ released, OSHA took important steps to lessen the burden on employers, including not requiring employers to pay for testing. However, there are still many unanswered questions and ambiguities surrounding the current ETS guidelines. However, over the weekend a U.S. Court of Appeals blocked the measure after several lawsuits from southern states were filed. While the halt does not have an immediate impact since the first deadline for compliance is not until early December, GLI will continue to monitor the legal challenges and how they impact your business.

Since we can not predict the outcomes of the litigation or how long the block will be in effect, below are key facts about the current guidance, which remains in effect for 6 months from the issue date:

• Employers with more than 100 employees must comply
• Workers will need to be fully vaccinated (does not require boosters or two week waiting period) by January 4^th, 2022
• Employers can provide a testing option for employees who do not wish to be vaccinated, but are not required to offer an on-site testing option
• 100 or more employee threshold is determined per company, not per location and covers all US employees
• Employers are required to provide four hours of paid leave for workers to receive each vaccination dose, beginning on December 5, 2021. Employers may not require employees to use their existing leave
• Employers must allow “reasonable” time off to recover (OSHA suggests two days). Employers can require employees to use existing leave balances to cover this paid time off
• If employer allows for testing option for unvaccinated employees, employer is not responsible for providing or paying for weekly tests.
• Unvaccinated employees are required to wear masks in the workplace at all times, even after producing a negative test result.
• Employees who are fully remote or work entirely outdoors are exempted from vaccine and testing requirements (but do count toward 100 employee threshold).
• Other exemptions include other rules issued last week for federal contractors and healthcare facilities that participate in Medicare and Medicaid programs.

Employer Actions Required by December 5, 2021

While the ETS requires covered employers to ensure employee vaccination or testing by January 4^, 2022, there are several actions that employees must comply with by December 5, 2021. Employers must:

• Assess vaccination status of employees and maintain records of employee vaccinations and test results
• Begin allowing up to four hours of paid leave for employees to receive vaccination and “reasonable” time off for recovery
• Communicate vaccination and/or testing policy to employees

Policy templates and additional resources are available through OSHA for employers to use or adapt for their businesses and can be accessed here.

What’s Next?

The ETS has already been challenged by several states and was blocked by a U.S. Court of Appeals on Saturday.  However, until the court renders a final decision, employers should begin implementing these requirements as if they will take effect to ensure they are in compliance if the mandate is upheld.

It is also important to keep in mind that Kentucky and Indiana are both State Plan states which means that they have 15 days to adopt the federal regulation (either as is or more restrictive) and then another 15 days to implement.

GLI will continue to monitor the mandate and any changes to the regulations. For more information, check out this FAQ from the US Chamber of Commerce on OSHA’s ETS.