On Friday, December 17, the 6th Circuit Court of Appeals lifted the 5th Circuit’s stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees.
Meanwhile, OSHA has announced a delayed re-start of the ETS enforcement until Jan. 10, and they will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Multiple emergency appeals have been filed with the Supreme Court, and it’s anticipated that the Court will issue a decision well in advance of Jan. 10, possibly as early as this coming week, on whether to reinstate the stay pending further review.
Soon after the 6th Circuit decision was issued, the 11th Circuit kept in place a Georgia Court’s nationwide injunction against the federal contractor vaccine mandate.
Here in Massachusetts, Attorney General Maura Healey’s Fair Labor Division updated its “Frequently Asked Questions About COVID-19: Employee Rights and Employer Responsibilities.” A summary of the update from ABC Labor Counsel Carol Chandler of Stoneman Chandler & Miller LLP is below.
The Massachusetts Attorney General’s Fair Labor Division has issued guidance on a number of COVID-19-related issues, for example:
1.Can an employer require that all employees be vaccinated against COVID or wear masks and submit to COVID testing?
Yes, if they are physically entering the workplace. Employers must reasonably accommodate those with sincerely held religious beliefs and medical exemptions.
2. If an employer requires vaccination against COVID-19, who pays for it?
Vaccines are being provided free of charge. It may be billed to your health insurance.
3. Must employees be paid for time spent being vaccinated and for taking COVID tests?
If the employer sets the time and place for employee vaccinations or tests, this would be paid working time. Where only proof of vaccination or a negative test result is required, no payment is owed the employee.
4. Must the employer pay for time not worked because of an employee’s reaction to the vaccine?
The Massachusetts Emergency Paid Sick Time law covers payment of up to $850 for up to 40 hours of COVID -19 related sick time/employee until April 2022. State reimbursement is available until the $75 million in funding is exhausted.
5. May an employer require an employee to leave or stay out of work because of the employee’s illness or the exposure of the employee or his/her family member to COVID-19?
Yes, even if quarantine is not required.
Also of note is the fact that the EEOC has determined that employees with “Long COVID” may be considered to have a disability under the Americans with Disabilities Act.
Further information is available at www.mass.gov/service-details/frequently-asked-questions-about-covi-19-employee-rights-and-employer-obligations and https://www.ada.gov/long_covid_joint_guidance.pdf - PDF and on the HHS website at https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html.