Illinois Adopts New Public Employer Rules On Federal OSHA's COVID-19 ETS - Health & Safety - United States (2024)

On January 7, 2022, the Illinois Department of Labor (IDOL)filed peremptory rules adopting the U.S.Occupational Safety and Health Administration's (OSHA) COVID-19 Vaccination and Testing EmergencyTemporary Standard (ETS). IDOL will require all state and localpublic employers in Illinois to comply with ETS sections (d)-(l).IDOL's peremptory rules do not apply to private businesses.

Employer Policies on Vaccination

Under the ETS, covered employers "must establish,implement, and enforce a written mandatory vaccinationpolicy." Such policies must require each employee to be fullyvaccinated, subject to accommodation for medical, disability, orreligious reasons.

A covered employer is exempt from the mandatory writtenvaccination requirement only if the employer establishes,implements, and enforces a written policy requiring employees tochoose either:

• full vaccination against COVID-19; or
• providing proof of regular testing for COVID-19 (every sevendays for those who report to the workplace) and wearing a facecovering.

Payment for Testing

Under the ETS, employers are not required to pay for COVID-19testing, but they may be required to pay for such tests pursuant toother laws, regulations, or collective bargaining agreements. IDOLis currently reviewing the issue of whether employers must bear thecosts of testing under the Illinois Wage Payment and CollectionAct.

Employee Notification to Employers

An employer must require employees to notify the employer ofpositive test results or diagnoses, regardless of COVID-19vaccination status or the testing required. Employees must remainaway from the workplace until receiving a negative test result on anucleic acid amplification test (NAAT) if the first positiveresulted from an antigen test, and they must meet the U.S. Centersfor Disease Control and Prevention's (CDC) isolation protocolor receive a recommendation to return to work from a healthcareprovider.

Proof of Vaccination

The ETS requires employers to determine the vaccination statusof each employee. To do so, employers must require each vaccinatedemployee to provide acceptable proof of vaccination status asoutlined in the ETS. Without such proof, the employer must treatthe employee as not fully vaccinated.

Face Coverings

Under the ETS, face coverings are required for each employee whois not fully vaccinated when indoors or when occupying a vehiclewith another person for work purposes, except when theemployee:

• is alone in a room with floor-to-ceiling walls and a closeddoor;
• is eating or drinking or for identification purposes incompliance with safety and security requirements;
• is wearing a respirator or face masks; and
• cannot feasibly use face coverings, or such a covering createsa greater hazard, as shown by the employer.

Employers must ensure that face coverings cover eachemployee's nose and mouth and are replaced when wet, soiled, ordamaged. An employer must allow an employee to voluntarily wear aface covering or face mask unless the employer can demonstrate thatdoing so creates a hazard of serious injury or death.

Information Provided to Employees

Employers must inform each employee (in language understandableto the employee) of:

• the requirements of the ETS and the policies the employerimplemented to comply with the ETS;
• COVID-19 vaccine efficacy, safety, and the benefits of beingvaccinated, by providing the document "Key Things to Know About COVID-19Vaccines";
• the requirements of 29 C.F.R. 1904.35(b)(1)(iv), whichprohibits an employer from discriminating against or discharging anemployee for reporting work-related injuries or illness, andsection 11(c) of the Occupational Safety and Health (OSH) Act,which prohibits an employer from discriminating against an employeefor exercising rights under, or as a result of actions that arerequired by, the section. Section 11(c) also protects employeesfrom retaliation for filing occupational safety or healthcomplaints, reporting work-related injuries or illnesses, orotherwise exercising any rights afforded by the OSH Act; and
• the prohibitions of 18 U.S.C. 1001 and section 17(g) of the OSHAct, which provide for criminal penalties associated with knowinglysupplying false statements or documentation concerning vaccination,testing, or other required records.

Availability of Records

By the end of the next business day after a request, theemployer must make an employee's COVID-19 vaccine documentationand test results available for examination and copying by thatparticular employee or those individuals who have received thatemployee's written authorized consent.

By the end of the next business day after a request from anemployee or an employee representative, the employer must makeavailable to the requester the aggregate number of fully vaccinatedemployees at a workplace and the total number of employees at thatworkplace.

The employer must provide to Illinois OSHA for examination andcopying:

• the employer's written policy and the aggregate numbersdescribed above within four business hours of a request; and,
• all other records and other documents the ETS requires theemployer to maintain by the end of the next business day after arequest.

Effective Date of the IDOL's Peremptory Rules and ETSExpiration

IDOL's peremptory rules are effective immediately forcovered employers in Illinois, but employers under the jurisdictionof Illinois OSHA (e.g., state and local government employers) haveuntil January 24, 2022, to develop their policies regardingvaccination and testing consistent with the ETS requirements.Employers must establish and implement their policies regarding allof the above requirements by February 24, 2022, with one exception.The testing requirements for employees not fully vaccinated butsubmitting to testing at least weekly or within seven days beforereturning to the workplace do not become effective until March 25,2022.

The ETS is scheduled to expire on July 24, 2022.

Constitutionality of the ETS

OSHA's ETS is currently before the Supreme Court of theUnited States, which has already heard oral argument.

If the Supreme Court stays or overturns OSHA's ETS,IDOL's rules mirroring the ETS may remain effective, as they donot depend on the ETS to remain effective.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.

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