Illinois Adopts New Public Employer Rules on Federal OSHA’s COVID-19 ETS

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 Emergency Temporary Standard (ETS). IDOL will require all state and local public 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 vaccination policy.” Such policies must require each employee to be fully vaccinated, subject to accommodation for medical, disability, or religious reasons.

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

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

Payment for Testing

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

Employee Notification to Employers

An employer must require employees to notify the employer of positive test results or diagnoses, regardless of COVID-19 vaccination status or the testing required. Employees must remain away from the workplace until receiving a negative test result on a nucleic acid amplification test (NAAT) if the first positive resulted from an antigen test, and they must meet the U.S. Centers for Disease Control and Prevention’s (CDC) isolation protocol or receive a recommendation to return to work from a healthcare provider.

Proof of Vaccination

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

Face Coverings

Under the ETS, face coverings are required for each employee who is not fully vaccinated when indoors or when occupying a vehicle with another person for work purposes, except when the employee:

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

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

Information Provided to Employees

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

• the requirements of the ETS and the policies the employer implemented to comply with the ETS;
• COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document “Key Things to Know About COVID-19 Vaccines”;
• the requirements of 29 C.F.R. 1904.35(b)(1)(iv), which prohibits an employer from discriminating against or discharging an employee for reporting work-related injuries or illness, and section 11(c) of the Occupational Safety and Health (OSH) Act, which prohibits an employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, the section. Section 11(c) also protects employees from retaliation for filing occupational safety or health complaints, reporting work-related injuries or illnesses, or otherwise exercising any rights afforded by the OSH Act; and
• the prohibitions of 18 U.S.C. 1001 and section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying 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, the employer must make an employee’s COVID-19 vaccine documentation and test results available for examination and copying by that particular employee or those individuals who have received that employee’s written authorized consent.

By the end of the next business day after a request from an employee or an employee representative, the employer must make available to the requester the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace.

The employer must provide to Illinois OSHA for examination and copying:

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

Effective Date of the IDOL’s Peremptory Rules and ETS Expiration

IDOL’s peremptory rules are effective immediately for covered employers in Illinois, but employers under the jurisdiction of Illinois OSHA (e.g., state and local government employers) have until January 24, 2022, to develop their policies regarding vaccination and testing consistent with the ETS requirements. Employers must establish and implement their policies regarding all of the above requirements by February 24, 2022, with one exception. The testing requirements for employees not fully vaccinated but submitting to testing at least weekly or within seven days before returning 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 the United 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 do not depend on the ETS to remain effective.

Ogletree Deakins will continue to report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.