Fifth Circuit Issues Stay on New OSHA Emergency Temporary Standard Requiring All Employers with Over 100 Employees to Ensure All Workers are Vaccinated or Tested Weekly
On Saturday November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued a stay freezing the November 4, 2021 Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”), which requires all private employers with over 100 employees to ensure, by January 4, 2022, that their employees are 1) either fully vaccinated, unless the employee qualifies for a religious or medical exemption, or 2) wear a mask and participate in at least once-weekly testing. While employers are not required to pay for testing under the ETS, they would be required to provide up to four hours of paid time to receive each primary dose (two doses for Pfizer and Moderna, one dose for Johnson & Johnson), as well as provide reasonable paid time for sick leave for side effects.
The ETS is currently being challenged in courts around the country. However, should the Biden Administration prevail and the stay is lifted, private companies with 100+ employees will be required to comply with the ETS, as described below, or risk financial repercussions.
The ETS applies to single corporate entities with multiple locations, adding all employees at those locations together to determine if an employer meets the 100-employee threshold. Employers must count both full-time and part-time employees in its calculation, regardless if they work remotely or in the office. While remote workers are counted for purposes of determining the employee threshold, remote workers will not be subject to vaccination and testing requirements. While the ETS is in effect, covered employers that drop below the 100-employee threshold will remain covered, and be required to comply with the ETS.
The ETS does not apply to traditional franchisor-franchisee relationships, as each franchise is considered a separate entity and only that franchise’s employees are counted. Further, the ETS does not apply to staffing agencies or work sites with multiple employers.
Covered employers must obtain proof of their employees’ vaccinations via healthcare provider or pharmacy records, Covid-19 Vaccination Record Cards; medical records, immunization records, or any other official documentation verifying the employee’s vaccination information. Employers must keep their employees’ vaccination status records available within four hours of a request from OSHA.
By December 5, 2021, covered employers must: 1) provide a written vaccination policy to its employees, which may be communicated through team meetings, email, written flyers, or other forms of communication, 2) determine the vaccination status of each employee, provide paid time off for vaccination and recovery, 3) ensure employees with positive tests are removed from the workforce and follow CDC quarantine requirements before they are allowed back at the worksite, 4) ensure that unvaccinated employees are masked when indoors, 5) report work-related COVID-19 fatalities and in-patient hospitalizations as required by the ETS, and prepare a roster of their employees’ vaccination status if requested by OSHA.
If an employer does not comply with the ETS, it can face up to $14,000 per violation.
If you are a large business, and you have questions regarding the new Emergency Temporary Standard, our skilled Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can help. For more information and to schedule an initial consultation, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.