By: Adam Konstas, Esquire and Alex Alden, Law Clerk (J.D., Wake Forest University School of Law, 2021)
On September 9, 2021, the White House announced the Labor Department’s Occupational Safety and Health Administration (“OSHA”) plans to publish an Emergency Temporary Standard (“ETS”) to require employers with more than 100 employees to ensure their workers get vaccinated or get tested weekly, and to provide paid time off for the time it takes workers to get vaccinated or to recover from post-vaccination effects. This ETS is expected to supplement an earlier COVID-19 Healthcare ETS published by OSHA back in June. While the previous ETS only affected the healthcare sector, OSHA’s supplementary ETS is expected to impact over 80 million private sector workers in addition to public sector employers such as educators and school staff. As OSHA’s Vaccination ETS is expected to be published “in the coming weeks,” employers must act quickly to ensure they are prepared to comply with its mandatory provisions.
What are the Elements of OSHA’s Vaccination Emergency Temporary Standard?
The exact language and rules of the impending Vaccination ETS are not yet known. However, on September 9th, President Biden announced his six part Covid-19 Action Plan, which offers guidance as to the general scope and function of the Vaccination ETS. Specifically, the White House stated OSHA is currently developing rules, implemented through this ETS, that will:
- require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work;
- require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination
OSHA has advised that employers will qualify for restrictions based on their total number of employees (100), rather than on the number of employees at a particular site.
Notably, OSHA’s previous Healthcare ETS required employers to support COVID-19 vaccinations for employees by providing reasonable time and paid leave to each employee for vaccination and any subsequent side effects. It is expected that the impending Vaccination ETS will incorporate similar provisions. OSHA advisors have also stated that the Vaccination ETS will specifically address whether employers must pay for testing.
Which Employers Will be Impacted by the Vaccination ETS?
In short, every U.S. employer who has over 100 or more employers will be affected. A spokesperson for OSHA has stated OSHA’s Vaccine ETS will also apply to public sector state and local government workers, including educators and school staff. Currently, 28 states and territories have adopted State Plans covering private employers and/or state and local government employees. These states are not bound by federal OSHA standards. However, such states will need to adopt their own ETS, which will need to be at least as effective as the federal ETS, within 30 days of OSHA’s Vaccination ETS’ publication.
Additionally, it is likely that the Vaccination ETS will provide limited protections for employees who are unable to be vaccinated due to medical or religious reasons (however this is a whole other topic) (“Return-to-Work Considerations for Employers: Adopting Mandatory COVID-19 Vaccination Programs”).
When will the Vaccination ETS be Effective?
Employers will not be bound by the rules contained in the Vaccination ETS until OSHA actually publishes the ETS. OSHA Advisors have claimed that the Vaccination ETS will be published within the “coming weeks.” However, the actual timeline is hard to determine as OSHA has only published an ETS, which are used to accelerate urgent rules aimed at protecting employees from exposure to grave danger, 10 times in its 50-year history. According to the Congressional Research Service, Courts have invalidated or halted four of those rules and partially blocked another. It took OSHA roughly 5 months to formulate the June Healthcare ETS. Prior to that, OSHA had not attempted to pass an ETS in almost 40 years. Moreover, once the Vaccination ETS is published, there is likely to be a period during which employers will have time to ensure their organization and employees are in compliance. For example, the Healthcare ETS contained some provisions which became mandatory 15 days after its publication, while compliance with other provisions was not required for a month after its publication. It is likely that the Vaccination ETS will similarly phase in its requirements. Accordingly, employers should expect to be bound by the rules contained in the Vaccination ETS within several months, but should note that this is indeed a very rough estimate.
What is the Penalty for Noncompliance?
It is expected that violations of the Vaccination ETS would likely be considered either “serious” or “willful.” A serious violation is subject to a maximum penalty of $13,653 per violation; and a willful violation can result in fines up to $136,532.
With these hefty penalties in mind, employers should begin preparing to implement vaccination and testing programs and policies now, in advance of the ETS, so as to be in a better position to comply with the Vaccination ETS once it becomes mandatory.
Adam E. Konstas is a Member with PK Law. He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts as well as federal and state administrative agencies on a variety of matters, including employment discrimination claims, employee (and student) discipline, labor relations, and wage/hour claims. Mr. Konstas also advises clients on the design and implementation of policies and procedures regarding employee (and student) relations, employee handbooks, hiring and termination procedures, as well as school system-wide policy issues including the use of online instructional tools and cloud computing, student data privacy, anti-discrimination. Mr. Konstas is well versed in the burgeoning website accessibility area of law and has successfully resolved a number of matters involving website accessibility. He can be reached at 410-339-5786 and akonstas@pklaw.com.
Alex Alden is a Law Clerk with Pessin Katz Law, P.A. (PK Law). He received his J.D. from Wake Forests University School of Law in 2021. He can be reached at 410-740-3169 or aalden@pklaw.com.
