2021.11.09 Ask A Lawyer

The Occupational Safety and Health Administration (OSHA) has published its Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to require that their employees receive a COVID vaccine or receive a weekly negative COVID test.  Here are some of the highlights:

  • The ETS applies to all employers under OSHA’s jurisdiction that have at least 100 employees firm- or corporate-wide.
  • Employees must be vaccinated by January 4, 2022, or commence weekly negative COVID testing on that date.
  • Employees who work exclusively from home or who work exclusively outdoors are not required to comply (i.e., such workers do not need to be vaccinated or receive a weekly negative test).
  • Employers are NOT required to pay for any costs associated with weekly testing unless required by a collective bargaining agreement or state or local law.
  • The “Honor System” will not suffice for vaccination verification—employers must determine the vaccination status of each employee, obtain proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • By December 5, 2021, all unvaccinated employees must wear face coverings at the workplace (note that OSHA has separately recommended face coverings for all employees, regardless of vaccination status).
  • Employers must implement and publish to their employees a written vaccination policy.  OSHA provides sample policy templates on its ETS website under a heading for “Implementation.”
  • The ETS preempts state or local laws that ban or limit an employer from requiring vaccination.
  • Employers must provide up to four hours of paid time off for employees to receive a vaccination and reasonable time and paid sick leave to recover from side effects experienced following each vaccine dose.

We anticipate that this ETS will face immediate legal challenges.  Stay tuned to these updates for additional information.

Disclaimer:  Although Bob and Mark will try to respond to your employment law questions with general legal information, Bob and Mark cannot provide specific legal advice or legal opinion in this setting.

About Bob Coursey Esq SPHR SHRM-SCP

Bob has been an employment lawyer for over 20 years. He spent his first 10 years of practice at Fisher Phillips, one of the most respected employment law firms in the country, where he defended companies in employment-related litigation. He then spent 11 years at Employers Council, where he focused his practice on keeping employers out of trouble.

In 2021, Bob started his own company—Modern Age Employment Law—where he counsels, represents, and trains employers who are looking for a modern approach to their employment law and HR challenges. Bob earned his bachelor’s degree in English from George Mason University in Virginia in 1992. In 1998, he received his law degree, with honors, from Georgia State University College of Law in Atlanta, where he also served on the Law Review.

Bob is licensed to practice law in Utah and Georgia. He’s also a certified Senior Professional in Human Resources (SPHR) and SHRM Senior Certified Professional (SHRM-SCP).

About Mark D Tolman Esq

Mark practices in the area of employment law, commercial litigation, and first amendment law in matters before state and federal courts, the Utah Labor Commission, and Equal Employment Opportunity Commission. Recognized by the Utah State Bar as the 2018 Labor & Employment Attorney of the Year. Mark works with employers to help them develop preventative employment practices and policies. He litigates cases involving complex factual and legal matters including employment discrimination, breach of contract, breach of fiduciary duty, covenants not to compete or solicit, interference with contract, trade secrets, and defamation.

Mark has tried cases before state and federal courts and before the Adjudication Division of the Utah Labor Commission. He has also argued cases to the Utah Supreme Court, the Utah Court of Appeals and to the United States Tenth Circuit Court of Appeals. He also assists news and publishing organizations in obtaining access to public records under the federal Freedom of Information Act (FOIA) and Utah Government Records Access and Management Act (GRAMA).