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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standards (ETS) setting out COVID-19 vaccine mandates for employers with 100 or more employees. These new standards became effective last Friday, November 5, 2021, and employers are duty bound to comply by December 5, 2021.
The OSHA ETS require employers to do the following:
1. All implicated employers must ensure that all employees have been vaccinated by January 4, 2022. unvaccinated employees who have not received all necessary immunizations must be tested weekly or more often. Any positive test will require the tested employee be removed from the workplace. All unvaccinated employees must wear masks in the workplace.
2. Beginning on December 5, 2021, large employers must provide up to four hours of paid time, exclusive of sick time or other paid time off, for employees to receive the vaccinations if they are received during work hours. If the vaccine is obtained outside of the employee’s regular work hours, the time need not be compensated.
3. Employers must provide up to two days of paid time off to any employee who experiences side effects from any primary vaccine dose. Employers need not account for any longer period of time, even if the employee suffers a prolonged reaction to a vaccine dose. This time off is in addition to the time off provided to obtain the vaccine, but may be satisfied by the employee’s accrued sick time. An employer may not accrue a negative balance for an employee who does not have sufficient time to compensate for these circumstances. NOTE: OSHA does not require employers to pay for COVID testing, but other laws may do so.
4. Large employers must provide clear and understandable policies and procedures implementing the OSHA ETS—that means in an employee’s first language and at their level of comprehension. The policies must include: providing a copy of the policy, the process to determine who is vaccinated, time and pay rules for vaccinations and side effects absences, procedures to follow for positive testing results or diagnosis, for requesting records, and, for unvaccinated employees, rules for testing and use of face masks. In addition, the employer must provide the OSHA document “Key Things to Know About COVID-19 Vaccines” and the rules addressing the prohibition against discharge of, discrimination of, or retaliation against employees for reporting work-related injuries or illnesses. Finally, the employer must provide the employees with information regarding the criminal penalties associated with knowingly making false statements or documentation under the United States Code, Title 18, Section 1001 and Section 17(g) of the OSH Act.
The federal OSHA ETS preempts California and local law on these issues. The current Cal/OSHA ETS does not require employers of any size to mandate vaccines or require testing for employees who are not vaccinated. Cal/OSHA could decide to adopt the federal OSHA ETS, or it could adopt a modified version that meets the requirements of the federal OSHA ETS with additional restrictions.
JoLynn M. Scharrer leads the Firm’s Employment Law Group and regularly address a variety of issues relating to the handling of COVID-related issues in the workplace. She can be reached at firstname.lastname@example.org or at 626-440-5200.