COVID-19 and Federal/State Updates

November 4, 2021

U.S. Federal Updates

National Paid Leave

This has become quite the rollercoaster. Apparently, federal Paid Leave is back in President Biden’s Build Back Better spending bill. So there’s still hope…we’ll see what tomorrow brings.

Occupational Safety and Health Administration (OSHA)

As we are sure you are already very aware, OSHA announced the Emergency Temporary Standard (ETS) on Vaccination and Testing today – the effective date of the ETS is November 5, 2021. The ETS establishes minimum requirements for employers – you can read the 490-page document here. There are many resources available here including a webinar and FAQs. They even have a Social Media Toolkit to help spread the word. Employers must be in compliance with most provisions in the ETS within 30 days (by December 5, 2021) while employers have 60 days for the testing requirement for employees who are not fully vaccinated (by January 4, 2022). OSHA has provided a handy chart of key compliance dates. OSHA intends for the ETS to preempt and invalidate any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. Here are some key details in case you don’t want to read the entire ETS:

  • Applies to employers with at least 100 employees company-wide and will not apply to federal contractors under Biden’s Executive Order 14042 (see more below) nor will it apply to those covered under the ETS for healthcare employers.
  • Further, the ETS will not apply to employees who do not report to a workplace where other individuals are present, while working from home, or who work exclusively outdoors. In other words, unvaccinated employees who work remotely do not need to submit to weekly testing. However, if and when a remote employee does enter the workplace (e.g. once per month), they will need to be tested within 7 days prior to returning to the workplace.
  • Covered employers are required to establish a mandatory vaccination policy or a weekly testing and mask policy. Policies should address all applicable requirements of the standard including:
    • Vaccination requirements;
    • Applicable exclusions from the written policy (e.g. medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for employees with disabilities or sincerely held religious beliefs);
    • Information on determining an employee’s vaccination status and how the information will be collected;
    • Paid time and sick leave for vaccination purposes;
    • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
    • Information to be provided by employees (e.g., how the employer is making that information available to employees); and
    • Disciplinary action for employees who do not abide by the policy.
  • Additionally, employers should include all relevant information regarding the policy’s effective date, to whom the policy applies, deadlines, and procedures for enforcement.
  • Employers must also provide employees with the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Employers are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records of each employee’s vaccination status.
  • Any work-related COVID-19 fatalities are required to be reported to OSHA within 8 hours of learning about them and any work-related COVID-19 in-patient hospitalizations must be reported within 24 hours.
  • Employers must maintain records of vaccine documentation and test results and make them available to employees (or anyone having written authorized consent of the employee). Further, employers are required to make available to an employee, or an employee’s representative, the aggregate number of fully vaccinated employees at a workplace as well as the total number of employees at the workplace.
  • Employers must provide paid time off for employees to get vaccinated (up to 4 hours per dose) and to recover from any side effects (reasonable time and paid sick leave).
  • OSHA permits employers to pass the expense for testing to employees. However, consider state laws that require employers to pay the costs of testing as well as testing offered as a reasonable accommodation.

Executive Order 14042 – Federal Contractors and Subcontractors

President Biden’s Executive Order 14042 requires federal contractors and subcontractors with a covered contract in part to mandate all employees to be vaccinated against COVID-19. This mandate applies to all employees whether or not they work on a federal contract. Exceptions are allowed under limited circumstances when an employee is legally entitled to an accommodation, such as a medical accommodation under the Americans with Disabilities Act (ADA) or a religious accommodation. If your organization is a federal contractor or subcontractor with a covered contract, these FAQs provide helpful guidance to comply with the order and how to navigate various accommodation requests and scenarios. Announced along with the newly released OSHA emergency temporary standard (ETS), the date for federal contractors to comply is now January 4, 2022.

For our clients who currently have our ADA service in place, Larkin is assisting with medical accommodation requests related to both vaccine mandates. If you are interested in learning more about our ADA service, please contact your Account Manager.

U.S. State Update

New York

New York employees will be able to care for siblings with a serious health condition under the state’s Paid Family Leave (PFL) law starting on January 1, 2023. Governor Hochul signed SB 2928 earlier this week that expands the definition of family member under PFL Under the bill, “Sibling” means a biological or adopted sibling, a half-sibling or step-sibling.

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