The tug-of-war on vaccination continues.  On December 17, 2021, a federal appellate court lifted the stay on OSHA’s emergency temporary standard requiring employers with 100 or more employees to ensure employees are vaccinated or are testing regularly.  The appellate court’s decision was immediately appealed to the U.S. Supreme Court.

What does this mean for employers?

OSHA’s emergency temporary standard (ETS) requiring vaccinate or testing and masking is now in place, but OSHA has delayed compliance.  OSHA is allowing “employers with sufficient time to come into compliance”, and “OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

OSHA’s fact sheet, sets out the specific steps that employers must take.  Below is an outline to help employers comply with these requirements.

  1. Determine if You are Covered. Only private employers with 100 or more employees from November 5, 2021 are subject to this mandate. This is based on a company-wide headcount, including both full and part-time employees.  This standard does not apply to those employers covered by the federal contractor requirements (which is still stayed).  This mandate does not apply to employees who work remotely or work exclusively outdoors.
  2. Adopt a Written Vaccine Policy. OSHA’s ETS requires you to adopt a written policy and has issued a Vaccination Policy template to help draft your own policy.
  3. Determine Employee Vaccination Status. Your written policy should contain the procedure for employees to notify their employers of their vaccination status and acceptable documentation.  The number of vaccinated employees may also dictate whether employers will offer a testing/masking option in that it may prove too difficult to administer such a program for dozens of employees.
  4. Confirm your Testing Protocols. Employers should identify those testing locations available to their employees and whether it makes sense to provide on-site testing.  Employers should also consider which types of tests they will accept, such as rapid tests or PCR, and whether employers will cover the costs of these tests.
  5. Clarify Paid Time Off Implications. Employers are required to give employees 4 hours of paid leave to get vaccinated during regular business hours. Employers that offer a testing option may use this paid time off for employees getting tested.
  6. Adopt Record Keeping Procedures. The ETS requires employers to establish procedures for employees to promptly report positive COVID tests. Keep in mind that work-related COVID fatalities must be reported to OSHA within eight hours of learning about them, and work-related COVID in-patient hospitalizations must be reported within 24 hours.

OSHA’s vaccination ETS is in place and unless the U.S. Supreme Court steps in, employers with over 100 employees will have to comply.  If you need help with your compliance efforts, we recommend you contact experienced OSHA counsel.