OSHA has suspended Biden’s COVID-19 vaccine mandate post the federal appeals court's decision to pause. According to OSHA’s website, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS [Emergency Temporary Standard] pending future developments in the litigation."
On November 4th, 2021, OSHA enacted an emergency temporary standard (ETS) regarding COVID-19 vaccinations. This ETS is intended to override local or state mandates which limit the employer's authority to require vaccination, testing, or face masks. The ETS was announced to protect those in the employment sector from the ‘grave danger’ the COVID-19 virus presents to unvaccinated employees. Though the ETS took effect immediately, OSHA requested comments and further questions hoping to work toward a final official standard.
Only a day later, enforcement of the ETS was temporarily stayed following several appeals by as many as 26 US states. The government has been required to respond to the issue, though with individual states appealing, the OSHA ETS it is likely to take more time for the matter to settle completely. For the moment, it’s important to know if you or your business could be impacted in the near future, and if so, what form that impact will take.
Through this mandate, OSHA plans to enforce vaccination requirements for employees throughout the United States. It requires either vaccination or weekly COVID-19 testing for employees who are either unable to receive the vaccine or refuse it.
Employers are required by the ETS to provide both reasonable paid sick leave for minor side effects of the vaccine, as well as up to four hours of paid time off to accommodate any necessary clinic appointments. However, the standard does not require employers to cover any costs associated with the weekly COVID-19 testing, nor the use of face coverings which may be required if an employee chooses not to or is unable to get the vaccine.
It’s important to note that some employees will likely be entitled to reasonable accommodation through their employer due to American Disability Act protections or religious beliefs. Some states have also already passed legislation to ensure employees can get their COVID-19 testing covered by employers. Even as written, there are clear complications within the ETS.
As of this moment, companies or employers with 100 or more employees fall under the OSHA mandate. The document itself holds information on which workers must be included in the count but in general, a company must include all United States locations. Part-time employees are included in the count but freelance or independent contractors are not.
Though a company may exceed 100 employees, their minimum requirements are also determined by the physical location of their workers. Those employees working from home or from another remote location, as well as those who do not work in close proximity with co-workers or customers, are not required by the ETS to get vaccinated. This exemption also applies to those who work exclusively outdoors.
For those employers who do not comply with the OSHA ETS, they could face citations of over $13,000 per offense, and if those offenses are willful or repeated, as much as $136,000.
The ETS outlined expected compliance by January 4th, 2022. At this time it is unclear if the ETS will return to effect or remain held up in courts. Depending on the government response, OSHA may have to extend its timeline, if a timeline remains relevant at all.
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