On November 4, 2021, the U.S. Department of Labor's Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) for the stated purpose of protecting more than 84 million workers from the spread of the coronavirus on the job.
The ETS currently covers employers with 100 or more employees but may be expanded to cover employers with less than 100 employees. The ETS also requires employers to provide paid time to workers to be vaccinated and to allow for paid leave to recover from any side effects.
Under the ETS standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
The deadline for employers to comply with the ETS is January 4, 2022.
On November 6, 2021, the Fifth Circuit Court of Appeals temporarily halted the mandate because of possible grave statutory and constitutional issues with it. The Biden Administration has indicated that it is confident that the mandate will survive legal challenges to it and employers and employees need to be prepared in the event the mandate is upheld.
Notably, the ETS also requires employers to do the following:
The ETS does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
In addition, the Centers for Medicare & Medicaid Assistance (CMS) has announced a rule requiring health care workers at health care facilities participating in the Medicare and Medicaid programs to be vaccinated.
The foregoing rules have potentially significant ramifications for both employers and employees. As examples:
These are only some of the challenges that employers and employees may confront. If you have questions regarding OSHA’s ETS, please contact an attorney at Norris McLaughlin.
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