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October 14, 2021

How to navigate COVID-19 workplace mandates, from a legal perspective

Courtesy / Brann & Isaacson Peter Lowe and Hannah Wurgaft are employment and labor attorneys with Brann & Isaacson, a Lewiston-based law firm.

COVID-19 infections are on the rise and many large employers are drawing up requirements to ensure their workforce is fully vaccinated or require proof of a negative test result from employees on a weekly basis. Some employers will also be required to provide paid time off for employees to get vaccinated and recover from side effects. 

There is no doubt this issue will be challenged in the courts. However, employers need to be prepared to implement the mandate, possibly within weeks. 

The OSHA mandate

The mandate will be implemented by the Occupational Safety and Health Administration (OSHA) as an Emergency Temporary Standard (ETS). OSHA may issue an emergency rule when employees are in “grave danger” from exposure to toxic or hazardous substances, or from new hazards. The emergency rule must be “necessary to protect employees from such danger,” and may remain in place for a maximum of six months, after which time it must be replaced by a permanent OSHA standard.

Over OSHA’s 50 year history, the agency has issued 10 Emergency Temporary Standards. Four of these rules were struck down by courts. OSHA last issued an emergency rule in June implementing certain COVID-19 safety and health measures for the healthcare industry. 

The timing

The U.S. Department of Labor has stated that the rule will be issued in the “coming weeks.” While many questions will remain unanswered until the rule is published, the rule will not change employers’ obligations to reasonably accommodate employees based on medical and religious grounds. Employers should create an exemption process, including the use of application forms, to document requests for medical and religious exemptions. 

How this applies to Maine employers and remote workers

OSHA’s emergency rule will impact private employers with 100 or more employees, and early signs are that the headcount will likely be measured on a company-wide basis. The Maine Department of Labor has confirmed the rule will also apply to Maine’s public sector employers with 100 or more employees, including state and local governments, public school systems, and sewer and water districts.

Maine entered into an agreement with OSHA in August of 2015 agreeing to adopt and enforce OSHA’s standards. The Maine Board of Occupational Health and Safety will therefore be required to adopt and enforce the forthcoming rule within 30 days of its release. The state Department of Labor has indicated that the emergency rule will not change any obligations under collective bargaining agreements.

The U.S. Department of Labor has stated informally that the emergency rule will not be applicable to remote workers. OSHA generally has jurisdiction over physical worksites where an employer can control or create a hazard to employees. Therefore, the requirement that an individual be fully vaccinated or provide proof of a negative test will likely apply to workers who visit any assigned work location, but not those exclusively working from home.

Compensable time for COVID-19 testing and vaccines

The emergency rule will likely require employers to provide paid time off for time spent getting vaccinated and recovering from the vaccine’s side effects, and we expect more details on the use and funding of this leave. Additionally, the Department of Labor has stated the emergency rule will specify if employers must bear the cost of COVID-19 testing. 

Another critical issue will be whether an employee’s time spent undergoing weekly COVID-19 testing is compensable. This question involves some quite tricky issues under the Fair Labor Standards Act, and employers will want to study the fine print of the new rule, and probably consult with counsel. 

Employers and employees have together faced many novel challenges during the pandemic and this latest federal mandate will be one more test.

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