Supreme Court Issues Stay of OSHA’s Emergency Temporary Standard on COVID-19

On Nov. 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) regarding workplace protections from COVID-19.

OSHA’s standard applies to private employers with 100 or more employees. It also covers any public-sector employer that operates in a state with an OSHA program. Employees who work remotely, who work exclusively outdoors, or who work exclusively on their own are exempt from OSHA’s standard.

Under OSHA’s emergency temporary standard, a covered employer must:

Determine the vaccination status of employees, obtain proof of vaccination status, and maintain a roster of each employee’s vaccination status;

Adopt a mandatory vaccination policy for employees or a policy requiring unvaccinated employees to be tested on a weekly basis and wear a face covering while at work;

Provide employees with up to 4 hours of paid time (not offset by other leave) to receive each vaccine dose, if done during normal work hours. Employees who receive the vaccine outside of work hours will not be compensated;

Provide employees with a reasonable amount of paid sick leave (2 days is presumed reasonable) to recover from vaccine side effects. Employers may require employees to use pre-existing sick leave for this purpose, but employees who have no sick leave in their bank must be provided a reasonable amount of sick leave for recovery (2 days is presumed to be reasonable); and

Require employees to provide prompt notice if they test positive for COVID-19 or are diagnosed with COVID-19 by a licensed healthcare provider. Such employees must be removed from the workplace regardless of vaccination status and cannot return to work until they meet required criteria. Such employees are not subject to additional COVID-19 testing for 90 days.

Note that the ETS does not require employers to pay for the testing of unvaccinated employees (though state law, other regulations, or collectively negotiated agreements may require the employer to pay for such tests).

The Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation on Nov. 4, 2021 requiring COVID-19 vaccination for healthcare workers employed by facilities that receive Medicare and Medicaid funding. Unlike the OSHA standard, the CMS rule requires vaccination for covered employees with no mask/testing alternative, unless a valid medical or religious exemption applies.

The ETS does not displace provisions in collectively negotiated agreements, so long as those provisions comply with the minimum requirements set forth in the ETS. Nothing in the ETS prevents employers from agreeing to implement measures that exceed the requirements set forth in the ETS.

This is intended to be a summary of the requirements set forth in the ETS and is not intended to be legal advice. Should you have any questions about the ETS or its implementation in your workplace, please contact an attorney at Willig, Williams & Davidson (215-656-3600), so that we may assist you.