The White House announced on September 9, 2021, that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated against COVID‑19 or require any workers who remain unvaccinated to produce a negative COVID‑19 test result on at least a weekly basis before coming to work. Employers must also provide paid time off to employees for the time it takes to get vaccinated and to recover if they suffer an adverse reaction to the vaccine. As an Emergency Temporary Standard, the rule will undergo an expedited review process before taking effect.
Exactly when the rule will be published, when it will take effect and what it will include remains to be seen, but some of the unanswered questions at this point are:
- What does “fully vaccinated” mean?
- Who must pay the cost for testing if the employee doesn’t get vaccinated?
- How will the ETS’ requirements account for exemption/accommodation requests under the ADA and Title VII?
- What will the penalties for noncompliance be?
- How much paid time off must employers provide to employees recovering from adverse reactions to a COVID‑19 vaccine, and can employers require such employees to submit medical documentation regarding their reactions?
President Joe Biden also signed executive orders that require all employees of the executive branch and federal contractors to be vaccinated; regular testing will no longer be an option.
Further, the Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID‑19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies.
Michigan employers may be wondering how the forthcoming ETS impacts their workplace safety obligations towards employees. Indeed, MIOSHA currently provides most employers broad flexibility in determining how to control the spread of COVID‑19 in the workplace. Under federal law, MIOSHA must maintain occupational safety and health standards that are either identical or “at least as effective” as the ETS. However, MIOSHA’s current Emergency Rules on COVID‑19 cover only employers in the health care industry. Moreover, none of its standards or emergency rules include requirements that are as expansive as those contained in the ETS. Thus, MIOSHA will have 30 days from the effective date of the ETS to modify its Emergency Rules on COVID‑19.
More information is available here. Please contact your Warner Labor and Employment Practice Group attorney for guidance on how these new developments will apply to your organization.