State News : California

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By:  Jeannette Herrera (Associate Attorney - Sacramento)

The Federal Occupational Safety and Health Administration (OSHA) published its highly anticipated Emergency Temporary Standard (ETS). As expected, employers with 100 employees or more are required to ensure their workforce is fully vaccinated or provide a negative test result at least once a week. In a likely effort to to encourage employees to choose vaccination over testing, the ETS does not require employers to pay for testing to workers who decline the vaccination.

Employers are further required to pay for employee time off to get vaccinated and provide sick leave for workers for any recovery time following the vaccination.

Health care workers must be vaccinated and are not provided the option of weekly testing. Unvaccinated employees must continue to wear face coverings. Employers also must obtain specified vaccatination documentation; a self-attestation is only allowed if the vaccination record is lost/cannot be produced along with acknowledgments of criminal penalties.

OSHA submitted its proposed ETS to the White House for the Office of Management and Budget to complete a regulatory review, and OSHA published a draft to the public yesterday, November 4. Today, November 5, the ETS was published in the Federal Register and is effective immediately. For those states subject to OSHA, the vaccination and testing implementation requirement deadline is January 4, 2022.

Although not subject to OSHA, California employers should expect a similar and applicable regulatory standard. Cal/OSHA has thirty (30) days, or until December 4, to adopt a standard that is at least as restrictive of the anticipated federal ETS. California employers may also see a similar January 4, 2022 implementation deadline for mandatory vaccination or testing.

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