UPDATE (11/8/2021): On Saturday November 6th, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the ETS, which will temporary halt the rule for employers with 100+ employees. Stay tuned as we continue to track all updates.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) on vaccination and testing in the workplace. The ETS establishes requirements for large employers (100 or more employees- firm or company wide) to protect unvaccinated employees from contracting COVID-19 in the workplace. Employers must comply by January 4, 2022.
Under the ETS, large employers are required to develop, implement, and enforce a workplace COVID-19 vaccination policy. Employees will have the option of choosing to receive the COVID-19 vaccine, or if they choose not to, they are to be required to wear face coverings in the workplace, & undergo regular testing for COVID-19. Additionally this ETS preempts state and local laws.
Here’s what employers are required to do:
- Develop, implement, and enforce mandatory vaccine policy. This policy may also include option for mandatory face coverings and weekly testing, if an employee does not want to receive the vaccine.
- Determine and keep records of your employee’s vaccination status.
- Support vaccination by allowing paid time off to receive the vaccine or to recover from any side effects that occur after receiving the vaccine.
- Ensure that you enforce weekly testing, or require an employee to test negative within 7 days of returning to the workplace.
- Require prompt notification of a positive COVID-19 test, or diagnosis.
- If a vaccinated or non-vaccinated employee tests positive, immediately remove them from the workplace, until work criteria is met.
- Ensure all unvaccinated employees wear face coverings at all times in a workplace setting.
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and any COVID-19 related hospitalizations within 24 hours of learning about the hospitalization.
- Make certain records available to employees for examination and copying.
OSHA plans to have programed or planned inspections, where agents go into workplaces to check that the workplace is in compliance with the rule. For what OSHA refers to as willful penalties, a company can be fined $136,532.
The standard penalty is $13,653 for a single violation and the number would increase if there are multiple violations in a workplace.
Either way, all employers should have a legally drafted vaccine program, to clarify the companies stance on the vaccine, and the rules should the employer mandate a vaccine by Jan 4, 2022, or the rules if the employer does not mandate the vaccine (mask wearing, social distancing, testing requirement (and who pays for the testing).
Join us on November 11th, as we host a webinar on the final rule. We’ll discuss the main aspects of the ETS, as well as discuss what an employer can do to prepare and implement a policy. Register by following this link: https://attendee.gotowebinar.com/register/6425003211653615371
As a reminder, vaccine policies are included in our ASK HR and ASK Pro subscriptions, which start at a flat-fee of $99 per month. Get your policy plus on demand legal advice today at: https://myhrcounsel.com/subscribe/
This blog article is intended for general information purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions about the use and enforcement of vaccine mandates.
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