On November 5 the federal Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) that requires all companies with 100 or more employees to establish and implement a written policy by December 5, 2021 that requires all employees to be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing starting January 4, 2022. The ETS answers many of the questions raised after President Biden’s COVID-19 Action Plan that was announced on September 9, 2021, including:
- The 100-employee headcount includes all of a company’s full-time and part-time employees in the United States (with exceptions for multi-employer or staffing company employees).
- Companies must implement a written policy which (1) mandates vaccinations for all employees but allows for medical and religious exemptions or (2) makes vaccinations optional but requires unvaccinated employees to wear face coverings in the workplace and be tested for COVID-19 every seven days.
- Companies must provide up to four hours of paid time off to receive each primary dose of the vaccine during work hours and a reasonable amount of leave to recover from side effects of the vaccine. Companies can require employees to use existing leave for these purposes.
- Employees must provide proof of vaccination status, such as a vaccine card or medical records, documenting their vaccination. Employees may only self-attest to their vaccination status if they are unable to provide acceptable proof. Employees that self-attest must certify their vaccination status and that they are unable to provide proof, and acknowledge that falsifying their vaccination status could result in criminal penalties.
- If the employer provides an option for weekly testing, employees must take tests authorized (including Emergency Use Authorization) by the FDA and provide documentation of the result to the company. Tests cannot be both self-administered and self-read (such as over-the-counter testing kits) unless the procedures are observed by the company or other authorized telehealth proctor.
- Companies are not required to pay for the cost of weekly testing or for face coverings for employees who choose not to get vaccinated under the ETS but may be required to do so by other laws or regulations.
SixFifty is monitoring the ETS and will have a company vaccine policy available in the coming weeks.