Covered Employers Must Establish A Written COVID-19 Vaccination Policy

December 22, 2021

As we previously discussed, the 6th Circuit Court of Appeals lifted the stay on the federal Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) regarding COVID-19 in the workplace. The enforceability of the ETS remains in question pending review by the U.S. Supreme Court. Nonetheless, covered employers need to be aware of upcoming deadlines to implement the requirements of the ETS.

Covered employers were originally required to comply with certain portions of the ETS by December 6, 2021. However, as a result of the delay in the implementation of the ETS due to legal challenges, OSHA has extended the deadline for covered employers to prepare a written COVID-19 vaccination or testing policy to January 10, 2022.

Under the ETS, covered employers, meaning employers with at least 100 employees companywide, must either require their employees to be vaccinated or require that employees who have not been vaccinated wear a face mask and provide proof of a negative COVID-19 test on a weekly basis.

OSHA will not begin enforcing the weekly testing requirement for unvaccinated employees until February 9, 2022. However, all other requirements of the ETS will be enforced beginning January 10, 2022 – including the requirement that covered employers determine the vaccination status of each of their employees and develop a written COVID-19 policy.

OSHA’s ETS establishes minimum requirements for covered employers. Many employers may choose to implement a vaccination policy regardless of how the U.S. Supreme Court ultimately rules on the issue.

According to OSHA’s Frequently Asked Questions (“FAQ”) page regarding its ETS, a comprehensive and effective written COVID-19 policy would include:

  1. Requirements for COVID-19 vaccination

  2. Applicable exclusions from the written policy, such as exemptions for medical contraindications, medical necessity requiring a delay in vaccination, or reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude them from accepting vaccination

  3. Information on determining an employee’s vaccination status and how the information will be collected

  4. Information about paid time off and sick leave available to employees for vaccination purposes

  5. The notification procedures when an employee tests positive for COVID-19 and how to remove them from the workplace

  6. How employees can access additional information about the ETS, the employer’s COVID-19 policies, and vaccine safety and efficacy

  7. Information about the disciplinary actions applicable to employees who fail to abide by the employer’s COVID019 policy

According to OSHA’s FAQ page, the written COVID-19 policy should address applicable effective dates and deadlines, who is covered by the policy, and the procedures for compliance and enforcement. Further, the written COVID-19 policy should be communicated to each employee in a language and at a literacy level that they understand.

OSHA has provided templates for both a mandatory vaccination policy and a policy that allows for weekly testing and masking, available here.

In order to prepare for the looming deadlines, covered employers must decide whether to mandate vaccination or allow masking and weekly testing, decide whether all or a portion of their workforce will be required to receive vaccinations (the ETS does not apply to fully remote workers or those who work only outdoors), develop a process to handle reasonable accommodation requests, and clearly communicate with their employees so that they understand the requirements of the written COVID-19 policy and why it is being implemented.

For employers, the attorneys at Freeburg & Granieri, APC are based in Pasadena and here to discuss how we can help your organization properly navigate the laws and requirements surrounding workplace vaccine and testing mandates and the reasonable accommodation process for employees who request an exemption from the mandate. The attorneys at Freeburg & Granieri, APC can also assist employers draft mandatory COVID-19 vaccination and testing policies.

For employees, if the ETS applies to your workplace, your employer should be following the rules to keep you and your coworkers safe. If your employer is not following the ETS, contact the attorneys at Freeburg & Granieri, APC to discuss how we can help you protect yourself.


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