OSHA Submits Draft of COVID-19 Vaccine Mandate ETS to the OMB

Recently, the Occupational Safety and Health Administration (OSHA) announced that it submitted a draft of its emergency temporary standard (ETS) for private employers requiring mandatory COVID-19 testing or vaccination to the Office of Management and Budget (OMB).

The ETS will require all businesses with 100 or more employees to ensure their workers are either fully vaccinated or tested for COVID-19 once a week, according to the White House. The rule will also reportedly require applicable employers to provide their workers with paid time off to get vaccinated and recover from any vaccination-related side effects (e.g., chills).

This submission to the OMB for review is a standard part of the regulatory process for an ETS. Once the OMB finishes its review and the rule is published in the Federal Register, the ETS will go into effect.

It’s currently unclear how long this process will take. The OMB’s review process for the most recent COVID-19-related OSHA ETS lasted more than six weeks. However, this ETS could have a different timeline, as President Biden has called for an expedited process on this rule.

“The Occupational Safety and Health Administration (OSHA) has been working expeditiously to develop an emergency temporary standard (ETS) that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace.”
  • S. Department of Labor

 

What This Means

While this announcement does not provide any new details on the contents of the ETS, it signals that the rule is moving forward as expected and could be in effect as soon as the coming weeks.

While the OMB reviews the rule, large employers with over 100 employees should begin preparing to comply. Employers with less than 100 employees that are interested in their own vaccine mandates should consult with legal counsel before moving forward.

Stay tuned for more details about the ETS in the coming weeks.

We will keep you apprised of any noteworthy updates. Reach out to Lakeview Risk Partners today for more resources.

EEOC Files First COVID-19 ADA Accommodation Lawsuit

The Equal Employment Opportunity Commission  (EEOC) recently filed a disability discrimination  lawsuit in Georgia federal court. This case represents  the first COVID-19 pandemic-related lawsuit the  EEOC has filed about a remote work request for an  American with Disabilities Act (ADA) accommodation. 

According to the suit, a Denmark-based workplace  experience and facility management company with a  U.S. headquarters unlawfully denied its employee’s  reasonable request for an accommodation for her  disability. After requiring employees to work  remotely four days per week from March to June  2020, the facility reopened. At that time, the  employee requested an accommodation to continue  working remotely two days per week and take  frequent breaks while working on-site due to a  pulmonary condition that causes difficulty breathing.  Although the company allowed other employees in  similar positions to work from home, it denied her  request and, shortly after, fired her, according to the  EEOC. 

“Denying a reasonable accommodation and terminating an  employee because of her disability  clearly violates the ADA at any time.” Marcus Keegan, regional attorney for  the EEOC’s Atlanta District Office Employer Takeaway 

Even pre-pandemic, the EEOC supported remote  work as a reasonable accommodation under the  ADA. It should come as no surprise that they are  pushing to use employers’ remote work policies  

during the pandemic as the grounds for an argument  that remote work accommodations are not  unreasonable. 

It remains to be seen whether courts will agree that  remote work should be considered a reasonable  accommodation for disabilities. Employers should  continue to monitor this lawsuit and others that  follow in its wake and be prepared to update policies  and procedures as appropriate. 

We will keep you informed of any noteworthy  updates. 

Contact Lakeview Risk Partners today for more resources.