Anne W. Chapman, Esq.
Labor and Employment, Business Litigation

As expected, the U.S. Occupational and Safety Health Administration issued an emergency temporary standard (ETS) related to the COVID-19 vaccination and employees on November 4, 2021. The ETS requires employers with 100 or more employees to ensure the entire workforce is either fully vaccinated or subjected to weekly COVID-19 testing.

Within days of its publication, a Federal Appeals Court issued a stay preventing its implementation. This measure is not permanent. Therefore, it is unclear if or when the ETS will be enforced. A summary of the ETS as published is below:

COVERAGE: Employers with 100 or more employees (with exceptions for some healthcare employers and federal contractors covered by other COVID-19 provisions)

EXCEPTION: Employees who are remote or work exclusively outdoors are not covered by the requirements, even if they work for a covered employer.

REQUIREMENTS: Ensure that work force is 100% vaccinated by determining vaccination status of each employee. This duty requires that an employee show acceptable proof of vaccination status and that the employer maintain a record of this proof. Any such record should be kept confidential as it is considered a “medical record.”

ALTERNATIVES: In the event an employee cannot get vaccinated (and requires a reasonable accommodation for medical or religious reasons) then an employer must require weekly COVID-19 testing and require the employee to provide proof of negative testing.

An employer is able to offer this option to any employee, in lieu of vaccination, if the employer elects. The employer is not required to pay for the cost of testing. Unvaccinated employees are also required to wear face coverings while indoors.

PAID TIME OFF (PTO): Employers are required to provide four hours of PTO for an employee to receive a vaccination. An employer is not required to provide sick time to the employee related to a positive COVID-19 test.

TRAINING: The ETS also requires that the employer provide information to the employee related to the ETS, COVID-19 and OSHA.

For more information regarding employment law, please contact labor and employment attorney Anne Chapman at (941) 748-0100 or achapman@blalockwalters.com.

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