The Occupational Safety and Health Administration (OSHA) on Nov. 4 issued an emergency temporary standard (ETS) requiring employees to be vaccinated against COVID-19 or to be tested weekly. The ETS covers any employer with 100 or more employees that is not subject to separate OSHA vaccination requirements for federal contractors or health care workers.
On Nov. 5, a federal appeals court temporarily blocked implementation of the OSHA ETS, but covered employers should still prepare for the upcoming deadlines while litigation is pending, according to employment law attorneys. (See the SHRM Online article Employers Should Plan for Vaccine-or-Testing Rule While Litigation Ensues.)
Under the ETS, employers are obligated to check each employee's vaccination status by Dec. 6, 2021, and to maintain these vaccination records. All covered employees must either be fully vaccinated or start weekly testing by Jan. 4, 2022. Exempted from the ETS are employees who work remotely 100 percent of the time and those who work exclusively outside or at a worksite where no other individuals are present.
Below, Jeff Nowak, a shareholder at law firm Littler who specialized in paid leave and Family and Medical Leave Act compliance, explains how the new guidance affects employer-provided paid leave.
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 time off, 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 getting vaccinated during the workday.
If an employee obtains the vaccination during the workday, 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.
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.
A couple of caveats:
- 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 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.
Jeff Nowakis a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where an extended version of this article originally appeared. © 2021 Jeff Nowak. All rights reserved. Republished with permission.
Related SHRM Articles:
President Calls for Paid Time Off for Boosters in New COVID-19 Plan, SHRM Online, December 2021
OSHA Issues COVID-19 Workplace Vaccine-or-Testing Policy, SHRM Online, November 2021
Remote Workers Are Exempt from Requirement to Be Vaccinated or Test for COVID-19, SHRM Online, November 2021
How to Comply with OSHA's COVID-19 Vaccination Emergency Temporary Standard, SHRM members-only how-to guide, November 2021