OSHA Issues Long-Awaited Vaccine Mandate

On Thursday, November 4^th, the Occupational Safety and Health Administration (OSHA) issued its emergency temporary standard (ETS) requiring employers with 100 or more employees to implement and maintain a policy requiring that its employees be vaccinated against COVID-19 or undergo weekly testing.

As the ETS provides a substantial amount of information on the mandatory vaccination policy, here are some of the highlights:

1. Which Employers Are Impacted?
   • Private employers with 100 or more employees firm- or corporate-wide.
   • Remote employees are included in the 100-employee threshold.
   • OSHA may consider separate entities to be joint employers to reach the 100-employee threshold.
2. Which Employers Are Not Impacted?
   • In Pennsylvania, public employers will not be covered by the ETS, as Pennsylvania does not have its own OSHA-approved State Plan.
   • Workplaces covered under other ETS plans, such as settings where an employee provides healthcare services or healthcare support services subject to the Healthcare ETS.
3. What Employees Do The ETS Requirements Not Apply To?
   • Employees who do not report to a workplace where other individuals are present.
   • Employees while working from home. Note, however, if a teleworking unvaccinated employee comes into the workplace, then the employer must ensure that the unvaccinated employee is tested for COVID-19 within seven days prior to returning to the workplace, and that the employee provides documentation of that test result to the employer upon return to the workplace.
   • Employees working exclusively outdoors.
4. Who Pays For Testing?
   • That's up to the employer to decide. The federal government is giving businesses the option of requiring unvaccinated workers to pay for the tests they must take at least once a week.
   • Employers, however, may be required to pay for testing because of other laws or collective bargaining agreements.
5. What About Time Off To Get Vaccinated?
   • Employers must provide reasonable paid time off for their employees to get vaccinated.
   • Reasonable has been defined as offering up to 4 hours for registering for each dose of the vaccine, completing required paperwork, traveling to and from, actually receiving the vaccine, etc.
6. What About Recovering From The Vaccine?
   • An employer must also provide reasonable paid leave for an employee to recover from side effects of the vaccination.
   • To recover from the vaccine, OSHA has indicated that providing up to 2 days of paid sick leave per dose would be deemed reasonable.
   • If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose.
   • The employer cannot require an employee to borrow against future paid sick leave to recover from vaccination side effects.
7. Do The Requirements Include Boosters?
   • Employees will not have to get boosters to be considered vaccinated under the requirements.
   • OSHA is following the Centers for Disease Control and Prevention's definition of "fully vaccinated," which is one shot of the Johnson & Johnson vaccine or two shots of Moderna's or Pfizer's.
8. Does Having Had COVID-19 Count As Being Vaccinated?
   • No. There are no exemptions to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection.
9. What About Workers Who Don’t Want To Be Vaccinated For Religious Or Other Reasons?
   • If employees assert that religious beliefs or medical conditions prevent them from getting vaccinated, they may be entitled to a “reasonable accommodation” under civil rights laws.
   • They may still, however, have to be regularly tested, unless a belief or condition qualifies them for another accommodation.
10. When Do Workers Have To Get Vaccinated?

• Employers must ensure that workers are fully vaccinated or start weekly testing by January 4, 2022 (60 days after publication). An employer must comply with the remainder of the ETS by December 5, 2021 (30 days after publication).
• A timeline showing when an employer is required to implement the ETS can be found below.

Questions?

If you have any questions or would like to discuss this update with our Labor & Employment Group, please contact us at 814-459-2800.

For more information, please contact Sarah Holland.