Professional Liability

Key Compliance Dates: December 6, 2021; January 4, 2022           

In June of 2021, OSHA filed its plan and reasoning for a new temporary regulatory standard for large employers (i.e., those with 100 employees or more) for the purpose of enforcing the President’s policy of mandating COVID-19 vaccinations. On November 5, 2021, that new standard became effective.

In a nutshell, the Emergency Temporary Standard (ETS), found at 29 C.F.R. §1910, Subpart U, is broken down into five subparts, addressing:

1. Vaccination, Testing and Face Coverings (1910.501),
2. Healthcare (1910.502),
3. Mini Respiratory Protection (1910.504),
4. Severability (1910.506), and
5. Incorporation by Reference (1910.509).

The section anticipated to have a ubiquitous reach is the first, relating to Vaccination, Testing and Face Coverings. Indeed, this section requires all employers subject to the ETS have in place a policy that:

1. mandates vaccinations by either Pfizer, Moderna or Johnson & Johnson;
2. exempts the mandate for approved reasons, including medical advice against it, sincerely held religious beliefs against it, or situations where it doesn’t apply at all—such as employees who do not come into contact with co-workers or customers, employees who work in an office space completely closed off from other office spaces, employees who work from home or employees who work outside; and
3. requires that those employees exempt from the ETS wear face coverings at all times inside a building or in a car if on company business accompanying others. It further requires those employees to be tested for COVID-19 every seven days and turn those results into the employer, beginning on January 4, 2022.

The ETS also requires employers to track and maintain data and documentation on each employee regarding their COVID vaccination status so that if OSHA must do an investigation based upon a complaint, that information is available for inspection. Importantly, this will require employers to collect and maintain (in a separate confidential medical file) each employee’s proof of vaccination and every COVID-19 test result for those employees who are exempt from the mandate.

The ETS further protects “whistleblowers” and creates a standard for non-retaliation for anyone who makes a complaint to OSHA without regard to its merit.

The ETS requires the employer to separate a non-compliant employee from the workplace unless and until the employee provides a current, negative COVID-19 test result. Significantly, there is no requirement for the employer to maintain a non-compliant employee on its payroll, nor is there a requirement for the employer to pay for the COVID tests that all exempt employees are required to take beginning in January 2022.

While legal challenges to the ETS were fully expected and those lawsuits have already been filed, including one Court of Appeals staying the enforcement of the ETS until the challenge can be fully heard, employers should nonetheless put the necessary measures in place to comply with the ETS requirements now by creating all required policies, assuming that OSHA is successful in defeating the pending challenges. Failure to comply with this mandate could result in significant monetary penalties to employers if OSHA determines that an employer failed to have the required policy in place and also failed to enforce that policy with respect to all of its employees.

For more information about how to implement and enforce this ETS in your organization, please contact RKODonnell@mdwcg.com, Chair, Employment Law Practice Group, Marshall Dennehey.

 

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