It arrived. Finally.
For those of us who have poured over the 490 glorious pages of OSHA’s emergency temporary standard (ETS) requiring employers across America to get their employees vaccinated, our collective heads are spinning this morning.
This is a leave law blog so, of course, I’ll give you everything you need to know about the leave you’re now required to provide your employees so they can obtain a COVID-19 vaccine or test.
Before I do, however, humor me while I gush for a moment about several of my Littler colleagues who have led our vaccination triage team, keeping the rest of us on the cutting edge so that we can effectively advise employers on critical COVID-19 compliance issues. Led by Barry Hartstein, Devjani Mishra, Jim Paretti, Claire Deason, Carly Zuba, and many others, our vaccination working group has compiled some phenomenal resources to keep employers compliant during the pandemic, including the most-recently released extensive analysis of the ETS for your review. Don’t miss out.
Quick Overview of the ETS
Before I dig into the leave issues, here are the general ETS highlights you can read about in the Littler ETS analysis above:
- The ETS covers any employer with 100 or more employees that is not subject to the federal contractor vaccine requirements or healthcare ETS.
- Exempted from the ETS are employees who perform 100% remote work, and those who work exclusively outside or work at a worksite where no other individuals are present.
- Employers are obligated to check each employee’s vaccination status by December 5, 2021, maintain these vax records, and maintain a roster of employees’ vax status.
- All covered employees must either be fully vaccinated or commence weekly testing by January 4, 2022.
- Any employee who is not fully vaccinated and reports to a workplace as of January 4, 2022 must submit to a COVID-19 weekly testing protocol. The employee must take and provide proof of a negative test at least once every seven days.
- If an unvaccinated employee frequents the office less often than every seven days, the employee must be tested for COVID-19 within seven days prior to returning to the workplace and must provide proof of negative test upon return to the workplace.
- Employers must ensure that all unvaccinated employees wear a face covering while indoors or when occupying a vehicle with another person for work purposes, with limited exceptions.
- If an employee cannot wear a face covering because of a disability or a sincerely held religious belief, the employee may be entitled to a reasonable accommodation.
The text of the ETS can be accessed here.
Extremely helpful FAQs from OSHA about the ETS can be accessed here.
Paid Leave Requirements
The ETS contains very specific guidance regarding paid time off to obtain the vaccine and recover from any side effects. Let’s take these requirements one-by-one:
Time Off to Obtain the Vaccine
As an initial matter, the ETS requires employers to support employee vaccination by providing employees reasonable paid time, including up to four hours of paid time, to receive each primary vaccination dose.
Pay differs, however, depending on whether the employee is obtaining the vaccination during work time or after work hours.
During work time: The ETS strongly encourages employers to allow their employees to obtain the vaccine during the workday. Similarly, employers cannot dissuade employees from obtaining the vax during the workday.
If the employees obtains the vaccination during the work day, the employer must pay the employee up to four hours of regular pay for each primary shot.
Keep in mind, four hours of pay is not automatic. To the contrary, the entire period to obtain the shot often will be far less than four hours. In the preamble to the ETS, OSHA assumes that the following will be considered a reasonable period of time to be compensated:
- Travel time per employee of covered firms of 15 minutes each way per vaccination dose (total of 30 minutes).
- Pre-shot wait time per employee of covered firms of 5 minutes per vaccination dose (total of 5 minutes).
- Post-shot wait time per employee of covered firms of 20 minutes per vaccination dose (total of 20 minutes).
Only 55 minutes? This seems a little tight to me, so let’s have some flexibility here. At the time of the vaccination, I’d recommend that you come to an understanding with your employee about the time he/she believes will be necessary to obtain the vaccine, recognizing that four hours is the upper limit.
Might more than four hours be necessary? In its ETS, OSHA noted that, on rare occasion, an employee may need more than four hours to receive a primary vaccination dose, in which case the additional time, as long as it is deemed to be reasonable, would be considered unpaid but protected leave. As such, the employer cannot discipline or terminate the employee if they use a reasonable amount of time to receive their primary vaccination doses. In these situations, the employee has the right to use available paid leave time to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.
Note: An employer cannot require that an employee use accrued paid leave, such as sick leave or vacation leave, to obtain the vaccine. The employer alone is responsible for providing pay (at the regular rate) for an employee to obtain the vaccine.
Outside of the work day: An employer is not required to pay an employee for obtaining the vaccine outside the work day. As OSHA makes clear in the ETS:
If an employee chooses to receive the vaccine outside of work hours, OSHA does not require employers to grant paid time to the employee for the time spent receiving the vaccine during non-work hours.
Costs: Employers also are not obligated to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. This could include the costs of travel to an off-site vaccination location (e.g., a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose.
Time Off for Recovery from Side Effects
The ETS also requires paid time off to recover from any side effects of the vaccine.
How does this work?
First, the employer should look to the employee’s own sick leave bank. If an employee already has accrued paid sick leave, an employer may require the employee to use the employee’s own paid sick leave when recovering from side effects experienced following a primary vaccination dose.
Couple of caveats here:
- If an employer does not specify between different types of leave (i.e., employees are granted only one type of leave, such at PTO), the employer may require employees to use that leave when recovering from vaccination side effects.
- If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects.
- An employer also cannot require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.
Second, if the employee does not have any sick leave available, the employer still must provide reasonable paid time off to recover.
Ok, Jeff, what do you mean by “reasonable paid time off”? OSHA explains it this way:
Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable…Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.
Based on the above guidance, it seems apparent that OSHA will expect employers to generally provide up to two sick days per shot where side effects occur and recovery time if needed (using time either through the employee’s own sick bank or, if the well is dry, directly from the employer).
Paid Time Off for testing?
Does an employer also have to foot the bill for testing? And compensate the testing time, too?
The ETS does not require the employer to pay for any costs associated with testing; however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.
But what about the time it takes to test? Is this compensable? Hang tight, as DOL noted in a briefing today that it would be publishing additional guidance on the compensability of testing time. While we await more guidance, beware of state/local laws that may already require you to foot the bill and pay the time for any required medical testing as a work condition.
Need help? The ETS requires that employers implement a written policy for vaccination requirements. If you need assistance with policy drafting, exemption forms, vendor acknowledgement forms, please reach out to me. We can help.