A federal appeals court temporarily halted the Biden administration's Occupational Safety and Health Administration rule requiring private employers with 100 or more employees – firm or company-wide – to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The court said it would expedite its review of the lawsuit brought by states and private businesses challenging the rule, which is supposed to go into effect January 4.
OSHA had just announced what they call a new emergency temporary standard or ETS with the new requirements.
Here are the key requirements for employers under the ETS that again have been paused for the moment:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
- Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
The ETS would not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
Employers not enforcing the ETS could be cited by OSHA and face a fine of up to $13,653 for each serious violation. A willful violation – described as an employer deliberately disregarding the mandate – could lead to a fine as high as $136,532.