Effective January 4, 2022, employees of private businesses with 100 or more employees, including part-time employees, will be required to either be fully vaccinated or submit to weekly testing. Employees who work remotely or from home, exclusively outdoors, or in a workplace without others present are exempt from the ETS.
Separate rules apply to federal workers and federal contractors. Another ETS, specifically for Centers for Medicare and Medicaid Services (CMS) applicable to many healthcare workers, mandates that those workers must be vaccinated. The ETS for healthcare workers does not provide an option for weekly testing.
The ETS requires the following:
- Each covered employer is required to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID-19 testing and face coverings for unvaccinated employees.
- Written policies must require the vaccination of all employees, including all new employees. Exceptions are allowed for: employees who have a vaccine contraindication, have a medical necessity requiring a delay in vaccination or are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.
- Regardless of available sick leave or other paid leave benefits, employers must provide paid leave of up to four hours at an employee's regular pay rate to get vaccinated and paid leave to recover from any side effects from the vaccine.
- Through documentation such as vaccine cards or medical records demonstrating vaccination status, employers must verify each employees' vaccination status, including whether they are fully or partially vaccinated, for as long as the ETS rules remain in effect.
- Employers must keep records for COVID-19 test results for all employees who decline vaccination and maintain them for as long as the ETS rules remain in effect.
- All employee vaccination records must be kept confidential following federal and state law.
- Employers are not required to pay for the weekly COVID-19 test for unvaccinated employees unless otherwise mandated by unions or state laws.
- Employees are required to report a positive COVID-19 test result promptly.
- Employers must report each work-related COVID-19 death to OSHA within eight hours of receiving the notification.
- Employers must report each work-related COVID-19 hospitalization to OSHA within 24 hours of receiving the negative test results.
The ETS preempts state and local law, including requirements that ban or limit employers' authority to require vaccination. Therefore, it will provide the necessary legal authorization to covered employers to implement mandatory vaccination policies if they choose to comply in this preferred manner.
If you have any questions regarding COVID-19 and the workplace, including how to address mandatory vaccination policies, contact your Bernkopf Goodman LLP attorney.
- November 5, 2021. COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) guidance officially published in the Federal Register.
- December 5, 2021. Employers must require all unvaccinated workers to begin wearing masks.
- January 4, 2022. Employers must require all unvaccinated workers to provide a negative COVID-19 test weekly.