By Jennifer L. Mora

Seyfarth Synopsis: Effective January 1, 2022, most Philadelphia employers will be prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment.

Currently, only New York City and Nevada have similar drug testing restrictions, but we expect this trend to continue. Nevada prohibits employers from taking adverse action against applicants who test positive for marijuana, with exceptions for, among other jobs, safety-sensitive positions and motor vehicle drivers who are subject to testing under state or federal law. New York City, with some similar exceptions, also bars employers from requiring applicants to submit to testing for marijuana. Notably, recreational marijuana laws passed recently in New Jersey and New York arguably prohibit pre-employment testing for the drug in most cases.

There are exceptions to the new Philadelphia ordinance. Specifically, the prohibition does not apply to individuals applying to work in the following positions or professions:

  • Police officer or other law enforcement positions;
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  • Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance.

It also does not apply to drug testing required pursuant to:

  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
  • Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

The ordinance requires the agency tasked with enforcement responsibility to promulgate regulations for the implementation and administration of the new requirements.

In a time where marijuana legalization is rapidly expanding, all employers should reassess their workplace drug testing policies to be sure they are in compliance with existing and soon to be effective laws. This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance complying with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and other legal rights.

By Loren Gesinsky and Robert S. Whitman

Seyfarth Synopsis:  New York City’s chief legal officer has shared some details about what to expect in the forthcoming regulations implementing the City’s COVID-19 vaccine mandate for private employers, which takes effect on December 27, 2021.

Mayor Bill de Blasio announced on December 6, 2021 — as summarized here — that all private sector employers in New York City will be required to ensure their employees are vaccinated against COVID-19. His surprise announcement left out most of the details, and he stated that the City would release guidance on December 15.

Meanwhile, on December 10, New York Governor Kathy Hochul declared that masks will be required in all indoor public places unless they implement a proof-of-vaccination requirement. That mandate takes effect on December 13.

In the days after these developments, Seyfarth and representatives of other interested parties spoke with New York City’s chief legal officer, Corporation Counsel Georgia Pestana, about what to expect in the employer-mandate regulations. Below we summarize points of particular interest to employers from that discussion.

According to Pestana, the regulations released on December 15 will include the following points of likely interest to employers in New York City:

  • While the effective date of the mandate is December 27, 2021, employees will need only one vaccine dose administered by that date, with the full vaccination requirement applying at a date to be specified in mid-January 2022.
  • For now, booster shots will notbe required for employees to be considered “fully vaccinated,” meaning that two doses of the Pfizer or Moderna vaccines or one dose of Johnson & Johnson will be sufficient.
  • The standards for medical accommodations and religious exemptions will be the same as those already applicable for employees who are covered by vaccine mandates  imposed by private employers.
  • The City will accept attestations from employers that they verified their employees’ vaccination status through visual inspection of vaccination cards or passport applications like NYC Covid SafeExcelsior Pass, and the CLEAR Health Passor through storage of photos.
  • The mandate will apply to work anywhere in the City, including outdoors, with the exception of home-based work.
  • The mandate will apply to sole proprietors, including those who market themselves as independent contractors to others.
  • It is unclear whether entities and individuals will be responsible for mandating vaccination for independent contractors they engage.
  • The mandate will apply to everyone who performs work in New York City with any regularity, not individuals who come into the City intermittently.

The City vaccine mandate overlaps to some extent with the statewide mask mandate that takes effect on December 13. Because the mask mandate applies only in public places where vaccination is not required, employers that comply with the City vaccine requirement, and that do not otherwise receive unvaccinated visitors on their premises, need not require masking for their employees.  The FAQs applicable to the mask mandate state that businesses can choose to implement a vaccination requirement as a condition of entry in lieu of a mask requirement. However, they make clear that “[w]hichever requirement is selected, it must apply to all within the business/venue’s capacity, including staff, patrons, visitors, and guests. A business and venue cannot do a ‘combination’ requirement.”

In addition, employers remain subject to the New York HERO Act, which requires various protective measures when the State has declared a public health emergency involving an airborne infectious disease. The State Health Commissioner issued such a declaration in September 2021 with respect to COVID-19. That declaration remains in effect until December 15, but is likely to be extended in light of the emergence of the omicron variant.

Under the HERO Act protocols applicable to most employers, masks are not required for employees in workplaces where all individuals are fully vaccinated. And in a workplace where employees are not fully vaccinated, the Act requires masking only when social distancing cannot be observed.

Seyfarth will continue to monitor developments in real time and will issue updates promptly.

Please do not hesitate to reach out to your Seyfarth relationship attorneys or any of the authors of this alert if you seek help in understanding compliance obligations under these new COVID-related requirements.  To stay up-to-date on COVID-19 developments generally, click here to sign up for our weekly digest.

Many will argue that 2021 was simply a variant of 2020. As expected, the Biden Administration has been very deliberate and at times aggressive with their COVID-19 tactics and executive orders, pushing employers to quickly make changes to their policies. Moving into 2022, business leaders and legal analysts are predicting the Administration will refocus on employee rights and other social impact initiatives.

Join our team of panelists on Thursday, December 9, 2021, from 9:30 a.m. to 11:00 a.m. Central, for this discussion on:

  • Trends in employment law – what employers should know as we approach 2022;
  • Updates on vaccine requirements for employers with 100 or more employees;
  • NLRB developments to watch; and
  • Movement in ESG, human capital management disclosures, and other impact initiatives.

Presenters

Matthew Gagnon, Partner
Jennifer Kraft, Partner
Ameena Majid, Partner
Kyla Miller, Associate
Thomas Posey, Partner
Adam Young, Partner

If you have any questions, please contact Julianne Holdsberg at jholdsberg@seyfarth.com and reference this event.

There is no cost to attend, however registration is required. REGISTER HERE

By Julia Gorham and Aimee Hinksman

Seyfarth Synopsis: Global employers have had to become adept at re-arranging the ways in which their employees work over the past two years, both domestically and internationally, with varying modes of mobility.

Business decisions are being made that will impact the direction of workforces, whether return to office working environments, adopting hybrid or fully remote approaches, flexible mobility, or the long tail of workforce dynamic re-stabilization, particularly in light of the talent wars brought about by the Great Resignation. In managing employees through those various issues, whether existing employees, developing talent, or hiring new employees, global employers potentially face a range of discrimination claims that could arise as a consequence of the changing nature of working arrangements. Below we outline some of the key areas to watch out for.[1]

  1. Hybrid working and assessing performance

Issue: Physical distance from colleagues and managers has changed workplace dynamics for good. Continued hybrid working and a distributed workforce are likely for many white collar/knowledge-based jobs, and some organizations may even be managing workforces that are split between full-time office work and full-time home work. These challenges require a fresh look at how employers set performance expectations and how managers hold their teams accountable to those metrics. Many studies over the past two years have suggested that employee output actually maintained, and even increased, in knowledge-based roles and professional spheres, but traditional methods of assessing value and contribution may not have adapted to reflect output and measurement changes.

Often, those who are physically present in the office are perceived to be harder working and may also be the first port of call for awarding new projects. For those employees who chose or who are entitled to continue working remotely, there is a potential for difference in treatment to arise, particularly if their manager’s style is more focused on in-office working. Such employees may feel that they are disproportionately impacted if management assessment is inherently skewed against remote/distributed working.

What should employers do:

  • To help ensure that office-based and remote-based workers receive equal consideration and treatment in assessing performance and access to work projects, careful thought should be given to what productivity actually equates to within the context of your organization. Physical presence alone should not be taken to measure productivity.
  • Ensure that the focus of your evaluations is on employee or team output and standards/behaviors (such as communication, collaboration, or compliance, depending on what is essential for your business) that can be universally expected of all employees regardless of location, rather than simply face-time or presentism.
  • Make sure that your managers buy in to your organization’s plans for future workforce working arrangements. Also, making sure that they know how to lead and manage remote teams or those working on a hybrid basis is crucial—few managers are given real skills development in this area.
  • Conduct year-end calibration of performance grades and related compensation reviews, which will be more critical than ever.
  1. Promotion and development

Issue: Related to the above, ensuring equality of access to opportunities for development, progression, and promotion is essential to avoid allegations of disparate treatment. Many who work remotely fear that this could affect their career development. Studies suggest that those working remotely can have their chances of promotion impacted by 50%, when compared with their in-office counterparts who may have greater access to managers and decision-makers, providing them with greater opportunities to build working relationships. We have all heard the phrase ‘out of sight, out of mind.’ Frequently this means that those workers who work from the office are at the fore-front of managers’ minds when it comes to handing out promotions.

Imbalance here can lead to a lack of diversity in the workforce, as women, older people, and those with caring responsibilities or medical conditions are often more likely to work remotely on a more regular basis. This is particularly problematic at a time where organizations globally are under stakeholder, legal, and regulatory pressure to improve their diversity and inclusion standards in all areas.

What should employers do:

  • Once your organization has determined its preferred approach to post-pandemic working structures, mapping your employee population to see who is working where and how will help you understand any possible pinch points where disparate treatment may arise.
  • Regular audits on promotions, training opportunities, and other benefits can be conducted, which will enable any patterns or trends to be easily identified and rectified at an earlier stage. Engaging with the employee population on this topic and explaining that such auditing is being conducted aids transparency, and it may help to reassure those who are concerned about the impact that working arrangements may have on their career progression.
  1. Return to office mandates

Issue: In some cases, there will be a swift move by companies to ‘return to normal,’ which can mean requiring employees to be physically present. While many employers are breathing a sigh of relief at the prospect of having their employees back in the physical workplace, for many employees this is not welcomed. A mandate to do so may cause stress, a lack of commitment to their company and, potentially, serious practical—and financial—impact.

Those with children or other caring responsibilities (which frequently fall to women) and disabled individuals are often those whose preference is to continue working from home. Employees in these circumstances who have been required to return to the workplace have already succeeded in discrimination claims in the UK, for example. A full-time return to the workplace may have a more significant impact on those in lower socio-economic and minority groups, and those in lower paid roles, who may not be able to afford the cost of care for their dependents. As a result of this, it is estimated that far more women than men are considering leaving the workforce, or scaling back their careers, in light of the issues created by the pandemic. Forcing a return to the workplace may trigger resignations and legal claims, possibly in significant numbers, amongst those populations.

Even outside specifically protected categories of employees, organizations need to be mindful of the desires of Gen Z and upcoming generations in the workforce and their expectations of the future of work, particularly in light of what has been termed the ‘Great Resignation’ and the resulting war on talent.

What should employers do:

  • Avoid laying down a blanket policy that employees should immediately return to offices on a full-time basis, which can have unintended consequences. Consideration should be given to whether there are ways in which your organization can help to reduce the burden that may fall on different employee populations.
  • Where an employee has a reasonable and legitimate reason affecting their ability to return to in-person working on a full-time basis, an open and constructive dialogue can help to find a solution that works for both parties—for example, by agreeing a transition period over which the employee will gradually return to full-time office working, agreeing that the employee can continue to work remotely for a certain number of days per week, or agreeing that the employee is only required to work in office for certain tasks or meetings. Practical considerations can also be helpful, such as not scheduling calls at times when care is most likely to be needed. Engaging directly also allows an employee to flag any legally protected grounds for their requested work arrangement, such as caring responsibilities, so that more thought can be given to workarounds in order to limit discrimination (and retention) risks.
  1. Redundancies and restructuring

Issue: Many employers have had to downsize their businesses over the pandemic, and this has disproportionately affected some groups. COVID-19 related retrenchments have hit those with care responsibilities, those in lower socio-economic groups, and lower paid roles hard, and they have reduced the number of opportunities for part-time or supplementary work in some business sectors and the gig economy.

Unemployment rates have been significantly higher for women, across the globe. According to the National Women’s Law Center, women in the US have suffered the majority of pandemic-related job losses and account for 53.6% of overall net US job loss since the start of the crisis. And the position is even more stark for Black women and Latinas—around 9% of Black women and 8.2% of Latinas were unemployed in November 2020, compared to an equivalent rate of 5.9% for white men. When viewed on a global basis, women’s job losses due to COVID-19 are approximately 1.8 times greater than men’s. This situation had led some to label the current status of the global economy as a ‘shecession.’

What should employers do:

  • When looking at any restructure or re-organization, carry out an impact analysis to ensure that there is no disparate impact on one or more groups or protected categories of workers, making sure that the analysis is fit for purpose in the pandemic environment.
  • Once any retrenchment or restructuring processes commence, appoint a neutral team or subject matter expert to review proposed impacts and carry out any stress testing of disparate impact before any communications/decisions are finalized.

If you’d like to learn more and further discuss the implications of these topics in your own workplace, please reach out to JuliaAimee, or anyone else in Seyfarth’s leading International Employment team.

 

[1] Vaccine mandates are a topic all of their own and are therefore not covered in this article.

The Employment Law Lookout blog is taking a holiday break for the rest of this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

As a reminder for employers we have previously posted these blogs on holiday safety topics and behaviors: Have Yourself a Safe, Undistracted, and Accident Free HolidayDon’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties , and Ring in the New Year, But Don’t Invite the Constable.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy (and warm) Thanksgiving holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you as we move into the year end and into 2022.

Thank you and Happy Holiday.

By Matthew J. Gagnon and Sarah K. Bauman

Seyfarth Synopsis: On November 17, 2021, the EEOC updated its COVID-19 technical assistance resources to add guidance on pandemic-based employer retaliation and interference.  The updated guidelines clarify the rights of employees who engage in EEO protected activity.  Key for employers are the numerous examples of what the EEOC deems retaliation in this specific context.  Notably, this update is also consistent with the Commission’s recent stated objective (previously discussed here) of broadening its outreach and improving its technology for purposes of promoting effective communication and understanding of the U.S. workforce. Employers would be well served to review the new guidance.

COVID-19 Technical Assistance Generally

The EEOC’s COVID-19 technical assistance has explained and synthesized on a rolling basis the applicability of the federal anti-discrimination laws to the COVID-19 pandemic.  The technical assistance seeks to inform employees of their rights with respect to such laws while addressing employer concerns stemming from the pandemic.  Presently consisting of 13 sections (available here), this assistance program addresses issues such as confidentiality of medical information (Section B), hiring and onboarding (Section C), return to work (Section G), and vaccinations (Section L).  For example, the Commission clarifies that employers may not direct at-risk applicants, such as those who are 65 or older or pregnant, to postpone their start date or revoke an offer of acceptance.  Employers may, however, choose to allow telework or discuss the option of a postponed start date.  In sum, the technical assistance provides valuable guidance to employers on how to balance necessary COVID-19 precautions with employees’ rights to be free from workplace discrimination.

Recent Update On Retaliation

The EEO laws, such as Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act (“ADA”), prohibit employers from retaliating against employees for engaging in “protective activity” — i.e., asserting their rights under such laws.  Protected activity generally takes many forms, the most typical being an employee’s complaint to a supervisor about workplace harassment, being a witness to such harassment and reporting it on the victim’s behalf, or filing a charge or lawsuit against the employer.  Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as termination, denial of a promotion or benefits, or involuntary transfers.  To be actionable, the employer’s response must be a result of the protected activity.

Additionally, the ADA specifically prohibits not only retaliation, but also “interference” with an individual’s exercise of ADA rights.  For example, employers may not coerce, intimidate, or threaten an employee who seeks to exercise his or her rights under the ADA.

In addition, (available here), the EEOC sets forth several scenarios, specific to the COVID-19 context, which constitute retaliation in violation of federal anti-discrimination laws.  For example, a supervisor may not give a false negative job reference to punish a former employee for making an EEOC complaint or refuse to hire an applicant because of the applicant’s EEOC complaint against a prior employer.  The EEO laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated.  Further, employers may not, for example, transfer an employee to a less-desirable role for requesting continued telework as a disability accommodation after a workplace reopens.

The Commission also explains that requests for accommodation are protected activity even if the individual is not legally entitled to an accommodation.  In other words, employers may not retaliate against an employee if that employee requests an accommodation but the employee’s medical condition, for instance, is not ultimately deemed a disability.  Such protected activities could come in the form of requesting to modify one’s protective gear (like a mask) so that it can be worn with religious garb, or requesting to be exempt from an employer’s vaccination requirement for religious reasons.

Implications For Employers

The Commission has stated that retaliation is the most frequently alleged form of discrimination in EEOC charges and has been for many years.  That said, employers should be aware of the specific circumstances that could give rise to such claims during these unprecedented times.  Increased efforts should be geared not only towards minimizing the health-risks of COVID-19, but also towards protecting their employees from discrimination derived from pandemic-related issues.  Doing so could significantly reduce an employer’s potential for liability under the EEO laws.

 

By James L. CurtisAdam R. YoungPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor Tweeted and blogged about the safety of workers during the busy holiday season, indicating an area of potential enforcement for OSHA in the coming weeks.

Unsurprisingly, OSHA has targeted workplace transmission of COVID-19 as a top holiday safety and health concern. All employers who are bringing on additional or temporary workers for the holidays must exercise additional care in their implementation of COVID-19 controls and prevention measures. In light of an anticipated surge in cases due to increased hiring of seasonal workers, as well as non-work-related family and social gatherings, OSHA updated its guidance on mitigating and preventing the spread of COVID-19 in the workplace. The updated guidance follows OSHA’s new Emergency Temporary Standard on Vaccines, Testing, and Face Coverings pending before the 6th Circuit.

Even before COVID-19, crowd management has always been a holiday concern. If large crowds are expected for holiday shopping events, employers should plan ahead and take steps to protect employees. The DOL has crowd management guidance to help employers prevent worker injuries during crowded shopping events.

In addition, for those employers hiring new or temporary workers for the holidays, it’s important to “train them for the risks they may encounter on the job“ – including how to reduce exposure to the coronavirus. Importantly, be sure to know the rules that apply to teen workers if employing anyone under 18. DOL also stresses that it is imperative that every worker is trained in a language they can understand and be encouraged to raise any health or safety concerns to their supervisor without fear of retaliation.

Concerning warehousing, distribution, and delivery hazards, the DOL has updated its guidance for keeping employees safe, including:

We have blogged before on this and similar topics before: OSHA Guidelines for Retailers on Holiday Shopping and Crowd Management Safety, Have Yourself a Safe, Undistracted, and Accident Free Holiday, and Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties.

For more information on vaccines or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or the Workplace Counseling & Solutions Teams.

By A. Scott HeckerBrent I. ClarkBenjamin D. Briggs, James L. CurtisAdam R. YoungIlana Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Judicial Panel on Multidistrict Litigation (MDL) lottery selected the U.S. Court of Appeals for the 6th Circuit to hear the consolidated legal challenges to OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), a result that anti-ETS parties may welcome.

The Sixth Circuit has been randomly assigned by a November 16, 2021 MDL lottery to hear the consolidated legal challenges to OSHA’s ETS.  A Court with a majority of judges appointed by Republican practice in its active and senior ranks, including many from the Trump years, the Sixth Circuit will now determine whether to maintain the U.S. Court of Appeals for the Fifth Circuit’s November 12, 2021 stay and will be tasked with guiding the ETS contests toward resolution.

This is not the result the government, unions, and like-minded entities were hoping for, and they will now pitch their positions to the Sixth Circuit, attempting to convince the Court that the ETS is necessary to protect workers from a grave danger.  Those seeking to overturn the ETS will argue that the Court’s sister circuit got the decision right and will rely on the Fifth Circuit’s stay opinion to continue their push to ensure the ETS never sees the light of a covered workplace.  This result could well continue OSHA’s less-than-stellar streak with ETS challenges.

As employers consider how this latest twist impacts their compliance efforts, your Seyfarth attorneys are prepared to help you navigate your chosen course.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungRobert T. Szyba, Robert S. Whitman, and  Craig B. Simonsen

Seyfarth Synopsis: The New York Department of Labor published “Frequently Asked Questions” which address occupational cannabis issues under the adult-use cannabis and the Marijuana Regulation and Taxation Act (MRTA).

New York State has legalized medical and recreational marijuana, and the NYDOL’s FAQs provide additional insights into how the agency will interpret the statutory protections and employer obligations.

One key take away from the FAQs is that the NYDOL takes the position that drug testing for marijuana (i.e., THC) is generally prohibited, unless such testing is specifically required by federal or other state law, such as with commercial motor vehicle drivers.  In effect, employers cannot test and cannot rely on testing as proof of impairment. According to the NYDOL, “such tests do not currently demonstrate impairment,” meaning that current testing technology is insufficient to establish impairment without more information. This prohibition does not appear in the statute, and we anticipate confusion among employers because drug testing programs adopt a legal presumption of impairment based on test positivity. Further, new technologies may increase the accuracy of testing and its correlation with identifiable impairment at the time of the test, which may undermine NYDOL’s rationale.

The FAQs indicate that an “employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working,” only if the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of their duties or tasks, or (2) interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws. In effect, the FAQs suggest that an employee can be physiologically impaired at work and not face discipline or discharge, so long as the employee does not “manifest specific articulable symptoms” and the employer does not have a written policy in place prohibiting impairment.

An employer can have a written policy prohibiting impairment at work, and can take disciplinary action for violation of that policy. If there is no such policy, however, the employer cannot take action unless the employee’s job performance suffers or there is some safety risk. So, employers seeking to create an impairment-free workplace should ensure that they maintain a written policy.

As we have previously blogged, the National Safety Council advises that employers adopt a zero tolerance policy for marijuana use in safety-sensitive positions. The NYDOL’s FAQs draw into question employers’ ability to enforce reasonable safety rules relating to marijuana use and impairment, particularly for positions that implicate the safety of employees. On the other hand, the FAQs highlight the need for employers to have written policies prohibiting workplace impairment to protect safety and comply with the law.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Cannabis Law Practice Teams.

By Scott HeckerElisabeth Watson, and Karla Grossenbacher

Seyfarth SynopsisYour dedicated Seyfarth Team has created a checklist to help covered employers achieve compliance with the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) in timely fashion.

Pending legal challenges have called into question the viability of ETS, published in the Federal Register on November 5, 2021.  Despite the Fifth Circuit promptly staying the ETS on November 6 – a Saturday! – we continue to encourage clients to move toward complying with the ETS’s requirements. The ETS includes two compliance dates, December 6, 2021, which includes most of the obligations mandated under the standard, and January 4, 2022, which primarily addresses testing.

Our checklist, with linked regulatory sections and additional resources, follows.

December 6, 2021 Deadlines[1],[2], 29 CFR 1910.501(m)(2)(i)

  1. Written Policy
  • Establish, implement, and enforce a written mandatory vaccination policy; or
  • Establish, implement, and enforce a written policy allowing employees to choose to be fully vaccinated against or provide proof of regular testing for COVID-19.
  • The requirements do not apply to employees who work from home, do not report to a worksite with other individuals, or work exclusively outdoors.
  1. Determination of Vaccination Status/Recordkeeping[3]
  • Employer must determine the vaccination status of each employee and whether the employee is fully vaccinated.
  • Employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
  • The employer must maintain a roster of each employee’s vaccination status.
  • This information must be treated as confidential medical records.
  1. Paid Time/PTO Related to Vaccination and Recovery
  • Provide reasonable time for each vaccination shot (up to four hours paid working time, not paid leave)
  • Provide reasonable time off for recovery. Must permit employees to use reasonable available paid sick leave reasonable (generally up to two days is reasonable).
  • Not retroactive.
  1. Removal of COVID-positive Employees
  • Regardless of COVID-19 vaccination status or any COVID-19 testing the employer must:
    • Require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; and
    • Immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee:
      • Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
      • Meets the return to work criteria in CDC’s “Isolation Guidance” (incorporated by reference, § 1910.509); or
      • Receives a recommendation to return to work from a licensed healthcare provider.
  1. Face Coverings
  • The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except under certain, designated circumstances.
  1. Information for Employees
  • The employer must inform each employee, in a language and at a literacy level the employee understands, about:
    • The requirements of this section as well as any employer policies and procedures established to implement this section;
    • COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines.”
    • The anti-retaliation and non-discrimination provisions of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act.
    • The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, providing for criminal penalties associated with knowingly supplying false statements or documentation.

January 4, 2021 Deadlines, 29 CFR 1910.501(m)(2)(ii)

  1. Testing for Not-Fully-Vaccinated Employees
  • Employees who have received the final vaccine dose of their chosen course do not need to be tested:
    • Employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines by January 4, 2022; or
  • Employees must undergo at least weekly testing, or test within 7 days before returning to work (if away from the workplace for a week or longer).
    • Employees who fail to provide timely test documentation must be sent home. Employers must retain and treat test records as confidential medical records.
  • Over-the-counter antigen testing is acceptable. However, testing cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
  • Testing can be unpaid; however, accommodations requirements, state law, or bargaining issues may require payment.

We recommend that as employers navigate compliance, they consult OSHA’s ETS resource page, including its extensive FAQs.  Your friendly, neighborhood Seyfarth attorneys stand ready to assist as well.

[1] Twenty-one state-plan U.S. jurisdictions must choose whether to formally adopt the ETS or to issue their own standard that is at least as effective as the OSHA ETS.  They include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

[2] OSHA’s ETS is effective immediately in 29 jurisdictions, including Alabama, America Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.

[3] Employers must have an employee vaccination status roster in place by December 6, 2021, and should implement a system to keep that roster current as employees work toward receiving the final doses of their chosen vaccine regimen by January 4, 2022.