Originally Posted: November 5, 2021 | Updated: January 10, 2022

Important Note for Hawaii Employers: Despite OSHA’s new compliance dates for the Large Employer ETS, Hawaii has an OSHA-approved state plan, so Hawaii’s Occupational State and Health Division (of the Department of Labor & Industrial Relations) will first need to adopt the OSHA ETS for it to be applicable to Hawaii’s Covered Employers.

On Friday, December 17, the 6th Circuit Court’s decision dissolved the stay of the OSHA ETS that the 5th Circuit had put in place on November 6 (and reaffirmed on November 16). Shortly thereafter, it was announced that Occupational Safety and Health Administration (OSHA) will “not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

 
On November 5, the Occupational Safety and Health Administration (OSHA) published in the Federal Register its long-awaited Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing covering those private employers with at least 100 employees -- firm- or company-wide count (“Covered Employers”).

The OSHA ETS requires Covered Employers to develop, implement, and enforce a mandatory vaccine policy unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular weekly COVID-19 testing and wear a face covering at work.

Additionally, the OSHA ETS affirms that Covered Employers are not required to pay for testing should an employee choose to produce weekly testing in lieu of a vaccine, unless required by other laws (federal, state, or county) or agreements, such as a collective bargaining agreement.

Highlights of Employer Requirements:

• Covered Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccination status.
• Develop, implement, and enforce a mandatory COVID-19 vaccination policy OR establish a policy allowing unvaccinated employees to elect at least weekly testing and wear a face mask in the workplace.
• Require unvaccinated employees to wear masks while working indoors and ensure compliance; ensure all unvaccinated employees are tested at least weekly for COVID-19. Covered Employers are not responsible for any costs associated with that testing unless required by the state or local laws or a collective bargaining agreement.
• Provide paid time off for employees to get vaccinated (up to four hours) and to recover from any side effects (the ETS requires up to four hours of paid time to receive each dose of the vaccine, including travel time, at the employee’s regular rate of pay). The ETS also requires “reasonable time and paid sick leave” to recover from the side effects of each dose of the vaccine.
• Communicate your policy and compliance requirements to employees and provide information on safety measures taken to control the spread of the virus.
• Require prompt reporting of any positive test results or diagnosis from employees. Immediately remove any employee that tests positive for COVID-19 from the workplace until they satisfy return-to-work criteria.
• Record-keeping requirements of providing employees with documentation of their own COVID-19 vaccination documentation or test results, be able to provide aggregate information on the total number of employees and fully vaccinated employees at any workplace upon request.

Two Important Dates (as part of original order issued on November 5, 2021):

• December 5, 2021: Covered Employers must be in compliance with most of the ETS’ COVID policies and requirements, including PTO for vaccination and face coverings for unvaccinated employees, recordkeeping, reporting and removal of COVID-positive employees.
• January 4, 2022: All covered employees must have received their vaccination, even if they still have not completed the 2-week waiting period, or begin undergoing weekly COVID-19 testing.

The ETS preempts states from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally-approved State Plan. Hawaii has a federally approved State Plan and will have 30 days to adopt the ETS or implement its own vaccination standard, provided the Hawaii plan is “at least as effective as” the new ETS standard. The ETS does not preempt Hawaii State or local requirements (i) mandating face coverings in indoor spaces or (ii) that members of the public provide proof of vaccination or recent COVID-19 testing to enter restaurants, bars, or other public spaces.

Sample Mandatory COVID-19 Vaccination Policy for OSHA ETS Covered Employees
Our sample Mandatory COVID-19 Vaccination Policy for Covered Employers to comply with the OSHA ETS is available. Covered employers are defined as employers with at least 100 employees -- firmwide or companywide count.

The following documents are also available for HEC members:

• Medical Accommodation Request - Information and Sample Form
• Religious Accommodation Request - Information and Sample Form

Originally Posted: November 5, 2021 | Updated: January 10, 2022