President Biden recently issued an Executive Order (EO) mandating COVID-19 vaccinations for certain health care workers, federal employees and federal contractors. The Executive Order also mandated that private employers with 100 or more employees must either require their employees to be vaccinated or submit to weekly COVID-19 testing. Today, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) establishing vaccination requirements for employers with 100 or more employees. Below is an overview of the requirements issued by OSHA in the ETS.
Which employers are covered by the ETS?
- Private employers with 100 or more employees firm- or corporate-wide. However, employees of covered employers who do not report to a workplace where other individuals are present, who are working from home, or who work exclusively outdoors, will not be required to comply with the ETS.
- In states with OSHA-approved State Plans, state and local-government employers with 100 or more employees. South Carolina is a “state plan” state (more on that below).
What does the ETS Require?
Employers covered by the ETS must either:
- Develop, implement and enforce a mandatory COVID-19 vaccination policy, OR
- Develop, implement and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
Covered employers must also:
- Determine the vaccination status of each employee;
- Obtain acceptable proof of vaccination;
- Provide employees reasonable time off to be vaccinated, including up to four hours of paid time off for each dose and paid sick leave to recover from any side effects;
- Ensure that unvaccinated employees are tested weekly and wear a face covering when indoors or occupying a vehicle with another person for work purposes;
- Require employees to promptly provide notice when they receive a positive test;
- Immediately remove any employees from the workplace who test positive;
- Provide each employee with the information from the ETS in a language and at a literacy level the employee understands and any related workplace policies or procedures;
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them; and
- Report work-related COVID-19 hospitalizations with 24 hours of learning about them, among other requirements.
Who pays for unvaccinated employees to be tested?
The ETS does not require that employers pay for any costs associated with testing. It also does not prohibit an employer for paying costs associated with testing. However, employers should understand that employer payment for testing could be required by other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements.
When does the ETS take effect?
- Employers must comply with most provisions by 30 days after the date of publication in the Federal Register.
- Employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register.
Employers NOT covered by the ETS:
- Private employers with fewer than 100 employees in total.
- Public employers in states without State Plans.
- Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
- This guidance was also issued in response to President Biden’s EO. It requires that all federal employees, contractors, and subcontractors (with an exception for subcontracts solely for the provision of products) to be vaccinated by December 8, 2021, unless the employee is legally entitled to an accommodation. Employees covered under this mandate are any contractors 1) actively working the federal contract, 2) working “in connection with” the federal contract, or 3) working at a “covered contractor workplace.”
- Employees providing healthcare services or support services who are subject to the Healthcare ETS.
- President Biden’s EO will also require staff members of many Medicare and Medicaid certified facilities to be vaccinated. The Centers for Medicare & Medicaid Services (CMS) has announced that the emergency regulations previously issued that require the vaccination for nursing home workers will be expanded to include “hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs” (emphasis added). CMS is expected to release further information on this requirement soon.
What does this mean for employers in South Carolina?
In regard to OSHA, South Carolina is a “state-plan” state. This means that when Federal OSHA issues an ETS, South Carolina OSHA has the option to adopt the Federal ETS or issue its own, just as effective measure, generally within 30 days of the ETS. South Carolina recently received a warning from Federal OSHA that its “state-plan” status is in jeopardy, due to South Carolina failing to adopt an ETS, or a just as effective measure, issued by Federal OSHA in June regarding health care settings. In response to President Biden’s EO and before the ETS was released today, South Carolina OSHA issued the following statement:
South Carolina OSHA is aware of President Biden’s announced plans that may impact South Carolina employers. This plan requires the issuance of an emergency temporary standard (ETS) from Federal OSHA. We currently do not have the proposed language of the ETS from Federal OSHA, but will evaluate South Carolina’s response once received. Should Federal OSHA issue an ETS that may require the state’s employers to take some form of action, ample notice will be provided.
Regardless of when South Carolina OSHA adopts the ETS or issues its own similar measure, covered employers under the ETS should quickly begin making plans to comply with the requirements of the ETS. It’s important to note that employers must still comply with Title VII and the ADA when inquiring about an employee’s vaccination status, and whether to grant a religious or medical accommodation. If you need help in determining whether the above ETS applies to your organization, or whether your employees are entitled to a religious or medical accommodation, please contact Chris, Perry, or a member of our HSB Employment Law practice team.