On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) filed an Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing. The stated purpose of this ETS is to protect the employees of large employers (those who employ 100 or more employees) from the risk of contracting COVID-19 by encouraging vaccination. To encourage vaccination, the ETS mandates that covered employers (those who employ 100 or more employees) must develop, implement, and enforce a mandatory COVID-19 vaccination policy. However, the ETS does allow covered employers to choose to adopt a policy requiring that employees either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. The ETS offers covered employers these two options for compliance. As described more fully below, Illinois local governments (including school districts) are subject to this ETS because Illinois has an OSHA-Approved State Plan.

In addition to compliance, the ETS requires all covered employers to support vaccination by providing employees with reasonable time, including up to four (4) hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from vaccination side effects. While the ETS requires covered employers to bear the cost of providing up to four (4) hours of paid time and reasonable paid sick leave to support vaccination efforts, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings for employees who elect to remain unvaccinated. The ETS recognizes that it does not displace collective bargaining agreements and that certain aspects may need to be bargained, but that “Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS.”

Under the ETS, employers are also required to determine the vaccination status of each employee, obtain proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status. The ETS does allow for reasonable accommodations to the vaccination requirements (either medical or religious), but those employees with exemptions would likely still have to undergo weekly testing and wear a mask.

The ETS does state that employees who work fully remote do count towards the calculation of 100 or more employees, but those fully remove employees do not have to comply with the vaccination mandate or testing requirements.[1] Another exception for the ETS policy is employees who work exclusively outdoors.

The ETS requires employees provide the employer with prompt notice if they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; the employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. The employee can return to work when they receive a negative result on a COVID-19 nucleic acid amplification test, meets the return to work criteria in the CDC’s “Isolation Guidance,” or receives a recommendation to return to work form a licensed healthcare provider.

Illinois is one of 26 States that have an OSHA-Approved State Plan. The Illinois OSHA covers all state and local government workers in Illinois. When Federal OSHA issues an ETS, the States with an OSHA-approved state plan must either amend their standards to be identical or ‘at least as effect as’ the new standard, or show that the existing State Plan standard covering this area is ‘at least as effective as the new Federal standard.’ Adoption of this ETS, or one that is at least as effective under an existing State Plan, must be completed within 30 days of the promulgation date of the final Federal rule. Per the ETS, the State Plan standard must remain in effect for the duration of the Federal ETS. While Illinois has not yet adopted the ETS, it is expected to do so within the 30 days.

The ETS was published in the Federal Register on Friday, November 5th, and became effective immediately. Employees at covered employers, who have not been vaccinated, will have 30 days after the publication of the rule to complete the primary vaccination. This first compliance deadline date is December 5, 2021. For employees who have not received all doses required for a primary vaccination, COVID-19 testing compliance is required 60 days after the publication of the rule. This second compliance deadline date is January 4, 2022.

Over the weekend, the United States Court of Appeals for the Fifth Circuit issued an emergency stay on the ETS. This order is a temporary halt to the ETS and is not a ruling on the merits of the policy. The Fifth Circuit gave the Department of Justice until 5:00 PM on Monday, November 8th to respond to the motion for a permanent injunction on the ETS. This ruling applies to the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. However, there are at least two dozen other lawsuits that have been filed to challenge the COVID-19 vaccination and testing ETS throughout the nation so far. There is a possibility that differing outcomes among these lawsuits could eventually lead to Supreme Court review of the ETS.

As this is an evolving situation, please continue to follow for updates as they happen.

[1] An exception for this is facilities who accept Medicare patients.

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