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OSHA Emergency Employer COVID Vaccine Mandate

November 04, 2021

On November 5, 2021, OSHA’s Emergency Temporary Standard (ETS) will officially be published in the Federal Register and immediately become effective.

Alert

On Saturday, November 6, 2021, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the OSHA Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing. The emergency stay temporarily halts the rule pending further litigation. However, it remains unclear if the stay applies nationwide, only to the states, businesses, and organizations that are parties to the lawsuit, or only to states within the 5th Circuit Court’s jurisdiction. The temporary stay was issued in response to a request to permanently block the ETS while the case is litigated. The Court asked OSHA and the Department of Labor to respond by the end of the day on Monday November 8th, 2021 and the plaintiff's until the end of day on Tuesday, November 9, 2021 to respond. It’s not known how soon the Court will issue a decision on a permanent injunction, in the event one is issued the ruling should contain more details about applicability and scope. 

Paylocity will continue our system development efforts to ensure tools are available to assist our clients in the event the ETS is upheld. Employers unsure of their next steps given the pending litigation should consider their ability to quickly come into compliance with the various requirements of the ETS should they decide to delay preparing. Paylocity will continue to monitor the situation as it develops


On November 5, 2021, OSHA’s Emergency Temporary Standard (ETS) will officially be published in the Federal Register and immediately become effective.

In addition to other requirements, a Covered Employer must:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy OR
  • Adopt a policy where employees elect to get vaccinated or undergo regular COVID-19 testing AND wear face covering at work.
  • Covered employers have until December 5, 2021, to comply with all the requirements other than testing for employees who have not completed their primary vaccination dose(s).
  • Covered Employers have until January 4, 2022, to establish testing protocols for employees who have not received all doses required for a primary vaccination.

Background

On September 9, 2021, President Biden directed the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to work on developing an Emergency Temporary Standard (ETS) which will require employers with 100 or more employees to enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead enforce a policy allowing employees who are not fully vaccinated to undergo weekly COVID- 19 testing and wear a face covering while at the workplace.

On November 4, 2021, the unpublished version of the ETS was released. It will be published in the Federal Register on November 5, 2021, and it will take effect immediately. However, the rule provides two separate compliance dates to provide employers time to adopt the new rules. Employers will have until December 5, 2021, to comply with a bulk of the ETS provisions and until January 4, 2021 to comply with the testing requirements.

Highlights

Which Employers Are Covered

  • Private employers with 100 or more employees firm- or corporate-wide.
  • In states with OSHA-approved State Plans, state-and local-government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements.
  • The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare.

Workplaces Not Covered by the ETS

  • Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors; and
  • Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS.
  • Workplaces of employers who have fewer than 100 employees in total.
  • Public employers in states without State Plans.

Which Employees are not Covered

The ETS does not apply to all employees of a covered employer. It excludes the following:

  • Employees who do not report to a workplace where other individuals are present.
  • Employees while working from home.
  • Employees who work exclusively outdoors.

Employer Requirements

In order to comply with the OSHA ETS, employers must:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, 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.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose. The maximum of four hours of paid time may not be offset by any other leave that the employee has accrued, such as sick leave or vacation time, and must be paid at the employee’s regular rate of pay.
  • Further, the employer must provide reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Employers may require employees to use certain existing leave balances for this recovery.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return-to-work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

Interaction with State Law

OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Therefore, the standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally- approved State Plan. In particular, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

OSHA Resources

OSHA has published various resources to help employers navigate the new ETS.

Next Steps

Employers should start preparing for compliance and communicating those plans to their workforce. Paylocity is currently working on developing in-system solutions to help employers capture any needed information and meet any additional compliance requirements created by this ETS. Paylocity will also release a deeper dive into the ETS soon.

Thank you for choosing Paylocity as your Payroll Tax and HCM partner. This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.


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