A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave. The President’s announcement regarding these requirements was sorely lacking in details, but the OSHA briefing provided a few (not many) useful tidbits for nervously wondering employers. (Be aware, however, that the ETS is not yet written, and it is possible that some of what they said today might not end up being accurate….)
When Will the ETS Be Issued? In the “coming weeks,” but they’re not sure how many weeks…
New Bank of Paid Vaccination Leave? Not necessarily. Employers can either provide additional leave or use existing paid time off to cover this requirement. (Whew!)
How Are the 100 Employees Counted? Company-wide, not by location.
Will the ETS Requirements Apply to Fully Remote Employees? Nope. (Yay!) But if they do occasionally come to the office, or if they work with others in the remote location, the ETS requirements will apply to them.
Are Reasonable Accommodations Required for Medical and Religious Needs? Yes indeed. Employers will need to go through the normal interactive process to determine if such exemptions are, in fact, a reasonable accommodation.
Can an Employer Fire an Employee Who Refuses to Be Vaccinated or Get Tested? Well, that’s up to the employer to determine how to enforce the mandate. OSHA won’t get involved in such disciplinary decisions.
If an Employee Is Fired Because They Refuse to Be Vaccinated or Tested, Will They Get Unemployment Benefits? Also not OSHA’s issue. That will be up to each state’s UI agency to decide.
Can the Employer Require Vaccination Without the Testing Option? Definitely.
What If an Employer Is Covered by Multiple Rules/ ETSes? If an employer is, say, a federal contractor covered by the Executive Order mandating vaccinations and also has 100+ employees, they have to comply with all applicable rules, orders, and standards. OSHA says, however, that they will all be consistent with each other. (We can hope).
What If the Employer Has a Collective Bargaining Agreement with a Union? The ETS doesn’t impact the normal bargaining obligation. Depending on the CBA, there may be things in the ETS that are mandatory subjects of bargaining, and the employer will have to engage in their normal bargaining process.
Who Pays for Testing? How Do You Verify Vaccination? What Does Vaccinated Mean (i.e. Is One of Two Doses Enough)? Yeah, don’t know yet. It’ll be in the ETS. (Although really, they could have answered the one dose question. We can all answer the one dose question.)
Is This the End of It? Nope. According to the Acting Assistant Secretary of Labor for OSHA, “The President will announce additional steps in the weeks ahead.” (Yikes!)
Stay tuned, folks. It’s gonna be a bumpy ride!