Vaccine Mandates, Exemptions, and Testing: OSHA’s ETS, and What Employers Need to Know November 11, 2021 By Ashlee Brennan, Sr. Compliance Counsel Shortly after President Biden’s Executive Order in September, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its much anticipated emergency temporary standards (ETS) last week in order to protect employees from the spread of coronavirus and reiterate the importance of employer-mandated vaccinations. You’re probably wondering, “Do these new standards apply to my business? How quickly must our company adhere to compliance of this standard? What are methods for compliance? Lastly, Are there any exemptions?” Let’s break it down… Employer Definition The ETS applies to employers with 100 or more employees across the enterprise – not just in one location. This also 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 who are covered under the Executive Order 14042, which applies to Federal Contractors and Subcontractors or healthcare employers governed by Medicare and Medicaid rules. What is Required? Mandatory Vaccine Policy The ETS requires a 100%-compliant mandatory vaccine policy including: Adherence to the policy by all employees (new, current, and temporary) 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. More details about reasonable time off and some cautionary tips are provided by my colleague in the leave industry, Jeff Nowak, here!Please also note that there may be scenarios where an employee’s side effects raise to the level of disability, which may be covered under your 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 which are sweeping the nation requiring employers to cover such costs. The Department of Labor also promised more guidance regarding compensating employees for going through the testing process. Stay tuned… When Must Employers Comply? The ETS requires covered employers to have documented accurate vaccination status for all employees by December 5, 2021 and maintain a roster of these statuses. It also requires all covered employers 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 the strict mandatory testing/safeguarding, as required. An individual is considered ”fully vaccinated” two weeks after the single dose of the viral vector vaccine (Johnson & Johnson Janssen) or second dose of the mRNA vaccines (Pfizer-BioNTech or Moderna). Are there Exemptions to the Vaccine Requirement? Employees who work 100% remotely or with no other employees at a solitary work site 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. What is ReedGroup Doing? As employers work through guidance provided in the ETS and on the DOL’s website (webinars, fact sheets, FAQs, social media toolkits, etc.), ReedGroup 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, reach out to us for more information! Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic. 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