OSHA’s emergency temporary standards: vaccine and testing rules

The ETS applies to employers with 100 or more employees across the enterprise – not just in one location. This includes temporary workers, seasonal workers, and minors. A deeper dive into the definition reveals exemptions for multi-employer worksites and staffing company employees. Also note that the ETS does not apply to employers covered under Executive Order 14042, which applies to federal contractors and subcontractors and healthcare employers governed by Medicare and Medicaid rules.

Mandatory vaccine policy

The ETS requires a 100%-compliant mandatory vaccine policy, including:

• Adherence to the policy by all employees (new, current, and former)
• A process for requesting accommodations due to medical and religious exemptions
• Mandatory weekly testing/other safeguarding if employees are unvaccinated (masking included)
• Paid leave for employees who miss work to receive testing and for any side effects experienced

Paid leave and time off

The ETS also requires covered employers to provide leave and pay to employees in the following scenarios:

• Time off to receive the vaccine: Covered employers must provide “reasonable” time off, including up to four hours of paid time, to receive each vaccine dose (including booster doses). The pay requirement only applies if the employee is missing work time to receive the vaccine. Additionally, an employer cannot take adverse employment action against the employee for taking this time away, including any unpaid time that may need to be taken in addition to the 4 hours already provided.
• Time off to recover: Covered employers must provide “reasonable” paid time off for employees to recover from any side effects resulting from receipt of the vaccine. If the employer utilizes an accrual-based sick leave bank, it may be able to leverage those current sick leave policies. There are some exceptions, most notably that an employer cannot require an employee to incur negative time off or borrow from a future accrual bank. Please also note there may be scenarios where an employee’s side effects rise to the level of disability, which may be covered under a short-term disability policy, the Americans with Disabilities Act (ADA), and other leave laws.
• Time off for testing: The ETS does not currently require the employer to pay for costs associated with testing; however, there are many state and municipal laws sweeping the nation that require employers to cover such costs. The Department of Labor has also promised more guidance regarding compensating employees for going through the testing process. Stay tuned.

The ETS requires covered employers to have documented accurate vaccination status for all employees by December 5, 2021, and to maintain a roster of these statuses. As previously noted, it also requires all covered employers to adhere to the mandatory vaccine policy and paid time off requirements no later than January 4, 2022. This includes the requirement that all employees be “fully vaccinated” or adhere to strict mandatory testing/safeguarding. An individual is considered “fully vaccinated” two weeks after a single dose of the viral vector vaccine (Johnson & Johnson Janssen) or second dose of the mRNA vaccines (Pfizer-BioNTech or Moderna).

Employees who work 100% remotely or with no other employees at a solitary worksite may be exempt from the mandatory vaccine policy. Additionally, employees who have a medical condition or a sincerely held religious belief which precludes them from receiving the vaccine may be entitled to a reasonable accommodation under an employer’s policy.

You may be wondering, what about the recent ‘stay’ granted by the Fifth Circuit Court of Appeal? Or what about state-level bans on enforcement? While we await the legal challenges being thrown in the way of the ETS, legal professionals and HR practitioners agree that employers should continue moving forward in preparation for compliance with the ETS. Additionally, municipal and state authorities have and will continue making similar ‘OSHA-like’ requirements for their local workers. Standing still on any vaccine mandate policy is not going to be the winning choice and employers are encouraged to move quickly to seek legal advice and policy guidance.

As employers work through guidance provided in connection with the ETS and on the DOL’s website (webinars, fact sheets, FAQs, social media toolkits, etc.), Guardian is working with its compliance and product teams to ensure we are assisting our customers in meeting their obligations under the ETS. If you are a large employer seeking solutions for COVID-19 leave, accommodation, and vaccine compliance, contact your Guardian Group Sales Consultant for more information!