As noted in our recent client alert, the Sixth Circuit Court of Appeals lifted the stay on OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), and OSHA is currently proceeding with implementation of the ETS. OSHA now has updated its FAQs to clarify that employees have until February 9, 2022 to complete the primary vaccination series (e.g., one dose of the J&J vaccine or two doses of the Moderna or Pfizer vaccines) to avoid the weekly testing requirement. The employee is not required to have completed the two-week waiting period following vaccination to be considered “fully vaccinated.”
Employers are still expected on or before January 10, 2022 to have:
- developed a written mandatory vaccination or vaccine-or-test policy;
- determined and obtained proof of the vaccination status of all employees and be keeping records of same;
- provided certain required information to employees, including information about the ETS and the company’s policies to implement the ETS, the CDC document “Key Things to Know about COVID-19 Vaccines,” information on retaliation and discrimination, and information about penal laws for knowingly supplying false statements or documentation;
- allowed for time off for employees to be vaccinated or recovered from vaccine side effects; and
- begun requiring employees who are not fully vaccinated to wear face coverings indoors (or in a vehicle with another person for work purposes).
Employers should also be removing employees diagnosed with COVID-19 from the workplace, regardless of vaccination status.
For employers with more than 100 employees, you must have a vaccine mandate or require weekly testing of all non-vaccinated employees. OSHA says they won’t start enforcing the vaccine law with penalties until January 10, 2022 as long as employers are exercising “reasonable, good faith efforts” to comply, and that they will focus on compliance in the meantime. They have said they will hold off on enforcing the testing mandate and protocol requirements until February 9, 2022. To be in compliance, there are, in addition to the vaccine status monitoring and testing protocol, record-keeping, notification, and information distribution requirements