On November 5, 2021, OSHA published its latest Emergency Temporary Standard (“Test-or-Vaccinate ETS”) to address the effects of COVID-19 in the workplace – “COVID-19 Vaccination, Testing, and Face Coverings.” Under the Test-or-Vaccinate ETS, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees or (2) a combination of a COVID-19 vaccination requirement and weekly testing for those employees who choose not to get vaccinated. Per OSHA’s stated intent to strongly encourage vaccination through the Test-or-Vaccinate ETS, the rule specifically requires employers to provide paid time off for vaccination AND to recover from vaccine-related side effects. In the Preamble to the Test-or-Vaccinate ETS, OSHA asserts that these requirements ensure unvaccinated employees can be vaccinated without having to sacrifice pay or their jobs.
Below we review the two different types of leave, including their individual nuances, that are required by the Test-or-Vaccinate ETS.
Paid Leave for Vaccination
Under 29 C.F.R. 1910.501(f)(1), employers must provide reasonable time – up to 4 hours per dose – to each employee to receive their primary vaccine dose or doses during work hours. This includes time spent:
- Making the appointment and completing related paperwork;
- Waiting to get and actually getting vaccinated, as well as post-vaccination monitoring; and
- Traveling to and from the vaccination site as necessary.
OSHA guidance does clarify that an employer is not required to reimburse an employee for transportation costs incurred to receive the vaccine, just for the actual time to receive each vaccine dose. Even where an employer facilitates a vaccination event on site, it must provide reasonable paid time to employees to receive each primary vaccination dose, though the time may be more limited as it takes out travel and making the appointment. Notably, if an employee chooses to receive a primary vaccination dose outside of work hours, the employer would not be required to grant paid time to that employee for that dose. However, because of the paid leave scheme, it does seem less likely that an employee would make the choice to go outside of their work hours.
Time must be paid at the employee’s regular rate of pay and only applies to the primary vaccination doses; i.e., time required to receive a booster shot is not required to be paid under the Test-or-Vaccinate ETS.
Importantly, this paid time cannot be offset by other forms of leave, such as sick leave or vacation leave. As a justification for prohibiting the use of other paid leave for this purpose, OSHA explains that it created this new bucket of required paid time because it believes employees could be discouraged from getting vaccinated if they have to dip into their accrued sick leave or general PTO to get vaccinated.
However, other paid leave can be used to offset any additional time needed to receive a vaccine dose beyond the maximum of 4 hours per dose required by the Test-or-Vaccinate ETS. OSHA recognizes that it may take more than 4 hours to get a vaccination dose in certain cases and, as long as the additional time is reasonable, it is protected under the ETS, though it is unpaid (unless an employee has other paid leave available). In other words, if it takes an employee 5 hours to get a vaccine dose, the employer would only have to pay the employee for 4 hours of time to get vaccinated, but could not take an adverse employment action against the employee because of the additional hour if that additional hour was “reasonable.” And the employee could use any accrued sick leave or vacation leave to cover that additional hour. Conversely, an employee may need less than 4 hours to receive a vaccine dose, and, in that circumstance, the employer is only required to provide pay for the time actually needed to get the vaccination dose.
This requirement does not apply retroactively, meaning employers must only provide paid time to get vaccinated to employees who were vaccinated after the promulgation of the Test-or-Vaccinate ETS. The Test-or-Vaccinate ETS mandates both form of paid leave required by the standard be available to employees as of December 6, 2021.
Some states or localities may also provide for paid time for an employee to get vaccinated. If that is the case, an employer will meet the requirements of the Test-or-Vaccinate ETS as long as it provides reasonable time for vaccination and up to 4 hours of paid leave. In this circumstance, generally the more generous leave requirements to employees would apply.
Paid Leave for Recovery from Vaccine Side Effects
Under 29 C.F.R. 1910.501(f)(2), the Test-or-Vaccinate ETS also requires employers to provide a “reasonable” amount of paid leave for employees to recover from ill effects of vaccination following each primary vaccination dose. Again, “primary vaccination dose” means that this requirement does not include side effects of vaccination following receipt of a booster shot.
Unlike the leave required to facilitate an employee receiving the vaccination dose or doses, an employer may require an employee to use any accrued but unused sick or generic leave (i.e., “PTO”). This does not include vacation or other specific, non-sick leave. An employer also cannot require that an employee accrue negative leave in order to pay for time to recover from vaccine side effects. If the employee has no accrued sick leave or insufficient accrued sick leave, they cannot be made to borrow against future accrued leave. In this case, if the employee experiences side effects that require time away from work, the employer must provide paid leave specifically for this purpose. This is true even if the vaccine dose is received outside of work hours to the extent the employee experiences side effects during work hours.
Importantly, the Test-or-Vaccinate ETS does not specify a set amount of time for this leave as it does for leave to receive a vaccination dose. OSHA guidance is clear that an employer can set a “reasonable” cap on the amount of paid leave and identifies up to 2 days as presumptively reasonable for each primary vaccination dose. OSHA asserts that this is based on the CDC’s determination that, if an individual experiences side effects (some do not), the side effects should go away in a few days, as well as another study that determined side effects lasted for 2 days on average.
This is not to say that an employer must set a cap at two days where it has done its own evaluation of what is reasonable to permit an employee paid time to recover from vaccine side effects. We know that setting the cap at two days per primary vaccine dose would avoid scrutiny from OSHA under this provision of the Test-or-Vaccinate ETS, but an employer may be able to justify another, lower cap. Whether OSHA would find a lower cap compliant is unknown at this point. Notably, OSHA’s guidance makes clear that “reasonable” leave is not intended to cover the rare instance of prolonged illness from a vaccine dose (i.e., an allergic reaction). In this case, if the employee passes the cap, they may be entitled to use other forms of paid leave or be eligible for unpaid leave.
Similar to the paid leave required for receiving the vaccine, this leave benefit does not apply retroactively, although some employers may have been required to provide a leave benefit for this purpose pursuant to state or local law or per a collective bargaining agreement. And if an employer is already complying with a state or local law in providing paid benefits for recovery from vaccination side effects, they will be considered compliant as long as the paid leave given is “reasonable.” Again, the more generous leave requirements should apply.
Next Steps for Employers
Whether these requirements will go into effect based on the timeline set by the Test-or-Vaccinate ETS is currently an open question as several lawsuits have already been filed in multiple federal courts throughout the country and a stay of the rule has been granted in the Fifth Circuit (the geographic impact of that stay is in unclear).
However, these obligations, similar to others in the Test-or-Vaccinate ETS, will necessitate changes to employer policies and administrative processes to ensure leave time is properly recorded, tracked, and paid. Accordingly, we generally recommend that employers start preparing for these changes now, including:
- Determining what policies will need to be revised or generated for vaccine-related paid leave benefits;
- Evaluating whether it has current paid leave policies that would cover leave related to recovery from vaccine side effects; and
- Determining the system changes that may be necessary to facilitate administration and tracking of this leave.
The mandatory policy on vaccination document required by 29 C.F.R. 1910.501(d) must also include the employer’s plan to address paid leave for receiving vaccinations and recovering from vaccination side effects, and employers should prioritize developing that policy as well as it will contain the employers position on implementing all major aspects of the Test-or-Vaccinate ETS. Notably, the Test-or-Vaccinate ETS only requires the paid leave discussed above. Although the standard also mandates that employers immediately remove employees who have tested positive for or been diagnosed with COVID-19 from the work environment until they meet established return-to-work criteria, the employer does not have to provide paid leave for that time to comply with the Test-or-Vaccinate ETS. However, state or local laws may call for employers to provide paid leave in this circumstance.
