On November 4, 2021, OSHA finally released the Emergency Temporary Standard (ETS) implementing President Biden’s vaccine mandate discussed below. Then, on November 6, 2021, after challenges to the ETS were filed by Republican attorneys general Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several private companies, the Fifth Circuit Court of Appeals granted an emergency motion to stay the ETS. After further briefing, the appeals court reaffirmed the stay on November 9, 2021.
Because we do not know what will happen when the Fifth Circuit’s decision is appealed (and it surely will be), it is recommended that covered employers (those with 100 or more employees) start to prepare for implementing the rule.
Towards that end, the following is a summary of the ETS:
WHAT IS THE ETS AND WHO IS COVERED?
The ETS is the OSHA standard that mandates private companies with 100 or more employees require their employees to either (1) be vaccinated by January 4, 2022 or (2) test negative on a weekly basis and wear an approved face covering in the workplace. Employees choosing the second option are required to be in compliance starting December 5, 2021. The ETS is to be effective for six (6) months, unless an extension or permanent standard is put in place.
Part-time and at-home employees (but not independent contractors or volunteers) count toward the 100-employee threshold, but completely remote employees and those who work strictly outside are not subject to the ETS’ vaccine or face covering requirements. Workers who work remotely part of the time are required to comply with the ETS.
Note that healthcare providers, Medicare and Medicaid providers, government contractors, and government employees are covered by different mandates, not the ETS.
WHICH VACCINES COUNT?
The Pfizer, Moderna, and Johnson & Johnson vaccines are all acceptable. Booster shots are not yet required, and whether an employee has had COVID-19 in the past has no effect on the requirement: employers must still enforce the ETS against employees who have had and recovered from COVID-19.
ARE THERE EXCEPTIONS TO THE ETS?
There are medical exemptions and exemptions for sincerely held religious beliefs, as discussed below.
WHAT NOTICE MUST BE PROVIDED TO EMPLOYEES?
Covered employers must implement written policies covering the ETS, including the following:
- Requirement of vaccination or weekly testing requirements, as well as exemptions
- Documentation required to prove vaccination status and collection methods
- Required paid-time-off: four (4) hours of paid leave for each dose for employees to get their vaccine starting December 5, 2021
- Testing procedures and requirements (note that employers are not required to pay for testing or provide paid time off for testing)
- Information regarding COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated
- A representation that the employer will not discharge or discriminate against an employee for reporting work-related injuries or illness, exercising rights under, or as a result of actions that are required by, the ETS or filing an occupational safety or health complaint, reporting work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act.
OSHA has provided a Mandatory Vaccination Policy Template.
WHAT PROOF OF VACCINATION IS REQUIRED?
For the duration of the ETS, employers must maintain records of their employees’ vaccination status.
As proof of vaccination, employers are authorized to accept the following:
- A healthcare provider or pharmacy’s record of immunization
- A copy of the U.S. COVID-19 Vaccination Record Card
- A copy of medical records documenting the vaccination
- A copy of immunization records from a public health, state, or tribal immunization information system
- A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s)
Employees can also verify their status with an attestation in which the employee acknowledge their vaccination status (full or partial) and, if available, information regarding the type of vaccine, dates of administrations and who provided the vaccine, and a statement that the proof of vaccination is lost or cannot be produced. The attestation should include the following language: “I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
MORE INFORMATION
For those who are interested, a more detailed summary of the ETS can be found HERE, and the full text of the ETS can be found HERE.
As always, if you have any questions about the ETS or any other employment-related matter, please feel free to reach out.
Ellen M. Leibovitch
Board Certified Labor & Employment Lawyer
ASSOULINE & BERLOWE, P.A.
2101 N.W. Corporate Blvd., Suite 410
Boca Raton, Florida 33431
Main: 561-361-6566
Direct: 561-948-2479
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