On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) requiring employers with more than 100 employees to, among other things, ensure their workforce is fully vaccinated or require unvaccinated employees to provide negative test results on a weekly basis. The legislation also required employers to provide paid time off to allow employees to receive the vaccine.
Thereafter, however, numerous legal challenges were asserted against the ETS. Eventually, the Fifth Circuit Court of Appeals issued a stay prohibiting OSHA from enforcing the ETS. On November 16, 2021, OSHA announced that it was suspending implementation of the ETS until litigation is resolved. Specifically, OSHA stated “The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” So, for now, employers do not need to move forward with enacting policies that implement OSHA’s ETS.
On the other hand, employers should begin taking steps to implement recent Florida legislation. On November 18, 2021, Governor Ron DeSantis signed House Bill 1B and Senate Bill 2B into law. This legislation allows employers to require employees to receive the COVID-19 vaccine, but requires employers to provide exemptions to employees for the following reasons:
- Health concerns, including pregnancy and anticipated pregnancy, that are verified by a physician or physician assistant.
- A statement from the employee that the employee declines the COVID-19 vaccination because of a sincerely held religious belief.
- Immunity to COVID-19 based upon prior infection, as documented by a laboratory test performed on the employee.
- A statement from the employee that the employee will comply with regular testing at no cost to the employee.
- A statement from the employee that the employee will comply with an employer’s reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or persons.
Importantly, the Florida legislation has teeth: employers with fewer than 100 employees can be fined $10,000 per violation and employers with 100 or more employees can be fined $50,000 per violation. Therefore, employers should begin incorporating this new legislation into their pre-existing vaccination policies.