In a controversial new action, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has issued an Emergency Temporary Standard on Vaccination and Testing (“ETS”) requiring that many U.S. employees must be fully vaccinated against the COVID-19 virus or be tested every week.
Under the ETS, private employers with more than 100 employees join the healthcare industry and federal contractors as entities now mandated to have a vaccinated workforce. For these employers, ETS requires a fully vaccinated workforce by January 4, 2022, or a plan for any employees who are not fully vaccinated (and coming to the workplace at least weekly) to mask and test weekly for COVID. Employers will need to track the testing and can (but do not have to) pay for it.
The ETS is scheduled to be published in the federal register on November 5, 2021 and, unless blocked by court order, will take effect 30 days thereafter (i.e. December 5, 2021). As a practical matter most employed individuals in Massachusetts are already vaccinated and coming into full compliance by January 4, 2022 is attainable for most employers.
Whether employing a mandatory vaccine policy or allowing for testing/masking, employers need to plan now. This starts with understanding the vaccination rates of your workforce currently (i.e. if you haven’t yet asked, you need to do so now).
Once an employer identifies its unvaccinated employees, there are a number of positive, lawful and effective methods to have them get vaccinated. Certainly, publicizing that employees may take paid time for vaccination and recovery is helpful. A mandatory policy (with exceptions for religion and disability) is also a powerful tool, but can create conflict. For employers looking to achieve 100% vaccination status (and avoid tracking weekly tests) there are a number of incentives and educational programs that can fill in the gaps.
By December 5, 2021, employers meeting the threshold must be in compliance with some basic requirements:
- Employees must be provided paid time in order to get vaccinated
- Employees must be provided paid sick time to recover from any vaccine-related illness
- Employees must be required to disclose positive tests
- Employees must be provided the attached CDC information about vaccines @ https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
- Employers must report COVID deaths (within 8 hours) and hospitalizations (within 24 hours) when work-related
- Employers must keep written records of ETS compliance