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Our View: 5 things all private employers should know about OSHA vaccination mandate

Phoenix Business Journal Eric B. Johnson, Cale S. Johnson

On November 5, the U.S. Department of Labor’s Occupational Safety and Health Administration published its Covid-19 Vaccination and Testing Emergency Temporary Standard, or ETS. The ETS requires certain private employers to implement Covid-19 vaccination-related policies and is effective for six months.

Below are five considerations Arizona employers should make in light of the ETS .

Am I a covered employer?

The ETS covers private employers with 100 or more employees, with the exception of federal contractors and health care facilities subject to prior federal guidance. Employers should count all full and part-time employees businesswide, not just those who work in a single location. Independently owned franchises are generally considered separate from their franchisor. Employers that fluctuate above and below the 100 employee threshold are covered, effective the date on which they hit 100 employees.

What am I required to do?

The ETS requires covered employers to implement and enforce a policy that either (a) mandates full vaccination for employees or (b) requires employees to choose to be fully vaccinated or submit proof of weekly testing and wear a mask.

The ETS requires covered employers to give paid time off to employees to receive their vaccine or recover from any side effects. However, employers are not required to compensate unvaccinated employees for time spent receiving Covid tests. Nor are employers required to pay for weekly Covid tests.

How do I find out if my employees are vaccinated?

Employers must obtain and maintain information regarding their employees’ vaccination status. Employers must require each vaccinated employee to provide proof of vaccination. If an employee cannot provide proof, an employee may provide a signed statement attesting to their vaccination status. It is important for employers to gather this information in a manner sensitive to each employees’ vaccination status, without violating any employee’s privacy.

Are there any exemptions or exceptions?

The ETS requirements do not apply when: (1) the employee works where no coworkers or customers are present; (2) the employee works exclusively from home; and (3) the employee works exclusively outdoors.

The ETS exempts employees when: (1) a medical contraindication applies to the employee; (2) a medical necessity requires a delay in vaccination; or (3) the employee is legally entitled to a reasonable accommodation because they have a disability or sincerely held religious belief that conflicts with the vaccination requirement. Employers should offer an exemption process to consider whether reasonable accommodations are appropriate.

When do I need to comply?

Covered employers must comply with the ETS by December 5. By January 4, 2022, employers must ensure that employees are vaccinated, or are being tested weekly. If an employer had a mandatory vaccination policy in place, employers should examine and update their policies to ensure they comply with the ETS.

Employers should determine whether they are covered by the ETS, and if so, begin implementing policies to comply with the ETS, including requesting proof of vaccination. Employers also must inform their employees of the ETS requirements, the employer’s policy, and OHSA rules regarding discrimination for reporting OSHA violations.

Although the ETS was just issued, numerous lawsuits have already been filed challenging its implementation. The United States Court of Appeals for the Fifth Circuit, issued a stay of the ETS the day after it was issued, pending further litigation. Nevertheless, employers should prepare to comply with the ETS if and when the stay is lifted and/or should other challenges to the ETS fail.

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