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Legal Alert: Update on Vaccine Mandate - Emergency Temporary Standard (ETS)

Posted: 11/05/2021 | Employment, Business, COVID-19, Health Care, Government

This morning, after a White House Press briefing, the Occupational Health and Safety Administration issued a 490 page summary of the long-awaited Emergency Temporary Standard (“ETS”) implementing employer vaccine mandates as well as new testing and mask protocols for unvaccinated employees. The ETS stems from President Biden’s Executive Orders issued on September 9, 2021.

Although the final rule will be published tomorrow through the Federal Register, today’s summary has already answered many lingering questions pending OSHA’s summary.

For additional information and a more in-depth conversation about the information below, we hope that you will join Rothberg Law Firm for our Zoom presentation and discussion on the ETS Friday, November 12, 2021, from 1:00-2:30 p.m. Details and an invitation will follow this legal alert.

It is important to note that the ETS does not apply to federal contractors, sub-contractors or a setting where any employee provides healthcare services when subject to the separate Healthcare ETS.

Additionally, the ETS excludes employees who do not report to a workplace where other individuals such as coworkers or customers are present, who work from home, or who work exclusively outdoors with de minimis indoor interactions.

For those applicable businesses subject to the ETS, vaccines will be mandated effective January 4, 2022. If an employee chooses to forego the vaccine, employers are required to mandate weekly COVID testing and mask wearing.

No later than December 5, 2021, Employers subject to the ETS must establish a vaccination policy, determine the vaccination status of all employees, support employees who want to obtain the vaccine, and ensure employees who are not fully vaccinated are wearing appropriate face coverings and participating in weekly testing.

As long as the ETS is in effect, Employers are required to maintain records of each employee’s vaccination status. If an employee is not vaccinated, the employer must also maintain a record of the employee’s weekly testing results. Those records are considered medical records and must be preserved with the same confidentiality an employer would treat a traditional medical record.

Employer support for vaccination includes paid time off work for the employee to obtain the vaccine, which includes up to 4 hours, including travel time, at the employee’s regular rate of pay. The employer must also provide reasonable time and paid sick leave to recover from any side effects following each dose of the vaccine. Employers are permitted to require employees to first use any available paid time off before an employer has to offer additional paid leave at the employer’s expense.

OSHA is not requiring employers to pay for weekly testing of unvaccinated employees. Instead, the federal government is taking steps to ensure employees have access to free testing through various measures. If the free testing is unavailable by January 4, 2022, it appears the expense will fall on the employee.

Employers subject to collective bargaining will likely have to negotiate several of the aforementioned issues with their respective union leadership.

OSHA fines for non-compliance will be $14,000.00 per violation.

If we can be of assistance in drafting the appropriate policies, implementing testing procedures or better understanding the ETS, please do not hesitate to reach out.

Please see the links below for the White House Press Briefing and a much briefer summary provided by OSHA than the summary addressed in the opening paragraph.

Rachel J. Guin, Partner|[email protected]

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