The federal Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) obligating employers with 100 or more employees to require the COVID-19 vaccination for employees or, alternatively, weekly testing and masking for their unvaccinated employees.
The information below is an update on what is required by OSHA’s ETS, steps of how a city can implement and comply with ETS requirements, when a city must meet and negotiate with unions on implementation of mandatory vaccine/testing policies, and whether a city must pay for employee costs associated with mandatory vaccination and/or testing.
The following are sample documents cities can utilize that are referenced in this alert:
- Memo to Employees: OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing
- COVID-19 Proof of Vaccination Policy
- COVID-19 Proof of Vaccination, Testing, and Face Covering Policy
- COVID-19 Vaccine Attestation Form
- COVID-19 Testing Notice and Consent Form
I. What does OSHA’s ETS require?
Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, or, in the alternative, a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
Minnesota OSHA (MNOSHA) must adopt standards that are “at least as effective as” federal OSHA.
According to OSHA’s ETS fact sheet, the ETS requires that employers do the following:
- Implement a mandatory COVID-19 vaccination policy, with or without an exception allowing employees to instead undergo weekly COVID-19 testing and wear a face covering at the workplace.
- Create a list showing the vaccination status of each employee, obtain proof of vaccination and maintain these records.
- Provide employees with up to four hours of paid time off to receive each primary vaccination dose and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Booster shots are not covered in this requirement.
- Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
- Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
- Immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider, and keep the employee out of the workplace until the return-to-work criteria are met.
- Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
- Provide each employee with information they can understand about the requirements of the ETS and the workplace policies and procedures established to implement the ETS; vaccine efficacy, safety and the benefits of being vaccinated by providing the Centers for Disease Control and Prevention (CDC) document Key Things to Know About COVID-19 Vaccines; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.