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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard requiring all employers with over 100 employees to enforce certain defined masking, vaccination, and testing protocols. Specifically, the 490-page Standard requires all qualifying workplaces to require masking for unvaccinated employees by no later than December 5, 2021. No later than January 4, 2022, qualifying employers must impose weekly mandatory testing for all unvaccinated employees.
It is critical for employers covered by this Emergency Temporary Standard (ETS) to begin planning for the changes this mandate will impose on themselves and their employees as soon as possible. For example, the ETS requires covered employers to ascertain and document the vaccination status of all their employees. Employees who are not yet vaccinated must be afforded paid time off to obtain the vaccine and paid sick leave to recover from any vaccine side effects. Any employee who refuses to provide documentation of vaccination or who refuses to be vaccinated after January 4, 2022, must be tested for COVID weekly. A record of each negative and positive test must be maintained by the employer and OSHA imposes strict reporting requirements for all COVID positive test results. Penalties for failure to comply with the Standard are severe and can exceed $14,000 per violation.
As with most mandates, compliance with the ETS raises many related legal issues not explicitly covered by the Standard. For example, the maintenance of sensitive health care records by an employer, such as positive and negative COVID test results and the vaccination status of employees, exposes employers who do not adequately safeguard such information to liability for privacy violations. Accordingly, it is important for covered employers to reach out to competent counsel who can help them plan for and successfully navigate the specific requirements of the ETS as well as its second and third-order legal implications.
If you have questions regarding the ETS or other legal matters, please feel free to contact one of the legal professionals at West & Dunn through our main telephone number at (608) 975-3042 or online.