Breaking Down The OSHA ETS A Little Further—Employer-Provided Paid Leave

Yesterday, I told you that the Occupational Safety and Health Administration (OSHA) issued its long-anticipated Emergency Temporary Standard (ETS) providing guidance to the federal COVID-19 vaccine or weekly testing mandate for employers with 100 or more employees.

Oh, you missed it? No worries. I posted the announcement, general overview, and coverage of what constitutes 100+ employees here.

Helpfully, OSHA has provided some clear, concise(ish) FAQs discussing common questions employers might have as they attempt to comply with the mandate and ETS.

Let’s highlight a few.

Employers May Not Require Employees To Use PTO or Sick Leave To Get Vaccinated

In yesterday’s summary of the ETS, I mentioned, generally, that employers must pay employees for time taken to get vaccinated, and, if needed, to recover from any side effects.

OSHA’s FAQ 5.A. breaks it down. While employers must provide paid time off for employees to get vaccinated or recover from aftereffects of the jab, they must provide a “reasonable time to each employee during work hours for each of their primary vaccination dose(s), including up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination.”

Well, at least employers know that 4 hours is a reasonable time, just about.

That time cannot be offset by any other PTO, like sick or vacation leave.

And, it must be at the employee’s regular rate of pay. Note that may or may not include bonuses, commissions and the like. Check the Fair Labor Standards Act (FLSA) or your state wage and hour law (Virginia, where I practice, has a new one).

Why?

OSHA explains. Literally.

OSHA “is concerned that employees forced to use their sick leave or vacation leave for vaccination would have a disincentive to gaining the health protection of vaccination.”

Image by FotoRieth from Pixabay

No Need To Pay If Employees Vaccinate Off-Hours

If your employees are so busy doing what they do during work time, there’s no need to pay them for leave to get vaccinated on a Saturday other time off.

OSHA FAQ 5.C. explains that “if an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours.”

But, employers, your obligation to provide pay leave remains for employees to recover from side effects.

Yep, employers must provide “reasonable time and paid sick leave to recover from side effects that they experience during scheduled work time in accordance with paragraph (f)(2).”

Does The Requirement For Employers To Pay For Leave Extend to Boosters?

Other FAQs might cover this topic, but 5.A. tells us that this specific requirement, for 4 hours of paid leave, extends only to the one or two doses needed to achieve “fully vaccinated” status, i.e., one J&J shot or two doses of the Pfizer-BioNTech or Moderna vaccines.

This Is…A Lot.

There’s So Much More.

Naturally, We Have A Webinar Coming Up

I wouldn’t leave you hanging.

On Friday, November 12, 2021 at Noon ET, join my employment law partners Eric MeyerDavid RennerSid SteinbergGordon Berger, and I on Zoom to dig deeper into the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) and answer all of your questions in a way that doesn’t involve giving any actual legal advice or creating an attorney-client relationship.

You in? Great! Register here (https://bit.ly/OSHAETSZoom). I’ll bring lunch.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.