And So It Begins: OSHA Publishes Vaccination Mandate For Employers Of 100 Or More

Stradling Yocca Carlson & Rauth
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On November 5, 2021, Federal OSHA published its Emergency Temporary Standard (ETS) that requires employers of 100 or more employees to implement a written policy requiring vaccination or that all unvaccinated employees receive weekly testing and wear a face covering at work. The ETS also requires employers to provide paid time off to employees receiving the vaccine as well as sick leave for vaccine related side effects. The ETS is effective immediately and many of its requirements must be implemented by December 6, 2021. We suggest that employers immediately determine whether they are subject to the new requirements and develop a plan for compliance.

These new ETS do not apply to healthcare employers and federal contractors who are instead covered under separate standards which are governed by separate standards requiring vaccination.

What Is Required?

The Emergency Temporary Standard (ETS) enacts an expansive list of workplace requirements. Most significantly, covered employers of 100 or more employees – firm or company-wide – must develop, implement and enforce a written policy requiring employees to choose to either be fully vaccinated or undergo at least weekly COVID-19 testing and wear a face covering at work. While the ETS does not require mandatory vaccination, it allows employers to implement a mandatory vaccination policy without offering the testing option unless necessary for a reasonable accommodation.

Additionally, by December 6th, covered employers must also:

  1. Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status. An employee is considered “fully vaccinated” once two weeks have elapsed since completing primary vaccination with a COVID-19 vaccine, i.e. receiving the one dose Johnson and Johnson vaccine or the two dose Pfizer or Moderna vaccines. Vaccines approved by the World Health Organization are also acceptable. This information is considered an employee medical record and must be kept confidentially.
  2. Require employees to provide prompt notice to their employer when they test positive for COVID-19 or receive a positive COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  3. Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes. There are some limited exceptions to wearing a face mask including when the employee is alone in an enclosed room, when they are eating or drinking, when they are wearing a respirator, when wearing a face covering is infeasible or unsafe given the employee’s work duties, when working outdoors if certain requirements are met (discussed below).
  4. Provide the following information to employees about COVID-19 vaccines at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. With the exception of no. 2, the ETS does not specify the exact information that must be provided, the guidance found in the associated FAQ’s provide some helpful information links for employers to consider.
  5. Begin reporting work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

By January 4, 2022, employers offering the weekly testing alternative must begin enforcing the weekly testing requirement for unvaccinated employees by requiring unvaccinated employees to provide proof of a negative test every seven days. The testing requirement for not apply to an employee has received all doses of the vaccine prior to January 4th, but has not completed the two week waiting period after the last dose.

Which Companies Are Required To Comply?

Employers of 100 or more employees are required to comply with the ETS. The number of employees is determined on a companywide basis. For instance, if the employer has 25 employees at five separate locations, then they will be required to comply. Additionally, part-time, seasonal, and remote employees all count toward the 100 employee minimum, but independent contractors do not count.

There are some exceptions to which employees are counted. However, unless listed below, employers should presume that the employee is counted towards the 100 person threshold.

  • Employees of Franchisees: In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would generally be separate entities for coverage purposes, i.e. the franchisor would only count its employees, and each franchisee would only count employees of that individual franchise. For example, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.
  • Employees from staffing agencies are counted only by the staffing agency, not the employer they are placed with. For instance, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).
  • Multi-Employer Worksites: On a typical multi-employer worksite such as a construction site, eachcompany represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees. Each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under the ETS even if it does not have 100 or more employees present at any one worksite.

What If The Employer Has Fluctuating Staffing Levels?

If the employer has 100 or more employees on November 5, 2021, they are covered. If the employer has fewer than 100 employees on November 5, 2021, the ETS would not apply until they hit the 100-employee threshold. Once the employer hits the threshold, the ETS continues to apply for the remainder of the time the ETS is in effect, even if their staffing drops below 100. For example, if an employer has 103 employees on November 5, 2021, but then loses four within the next month, that employer would continue to be covered by the ETS.

How Do Employees Provide Proof Of Vaccination?

The employer must require each vaccinated employee to provide acceptable proof of vaccination status by December 21, 2021, including whether they are fully or partially vaccinated. The ETS lists the following as acceptable methods of proof:

  • the record of immunization from a health care provider or pharmacy;
  • a copy of the U.S. COVID-19 Vaccination Record Card;
  • a copy of medical records documenting the vaccination;
  • a copy of immunization records from a public health, state, or tribal immunization information system; or
  • a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

Each employee who has been partially or fully vaccinated should be able to provide one of the forms of acceptable proof listed above. An employee who does not possess their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physician’s office) to obtain a new copy or utilize their state health department’s immunization information system. In these cases, a signed and dated statement by the employee will be acceptable if it includes the following information:

  1. Attests to their vaccination status (fully vaccinated or partially vaccinated) including the type of vaccine they received, the dates of vaccination, and the name of the location where they received the vaccine;
  2. Attests that they have lost or are otherwise unable to produce proof required by this section; and
  3. Includes the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

Employers must require employees to provide one of the listed acceptable documents for proof of vaccination or the employee statement as described above. These are the only acceptable forms of proof of vaccination status.

Does “Natural Immunity” Count?

No, the ETS does not offer any exemptions to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. Any employee who is not “fully vaccinated” or does not provide the acceptable proof of vaccination is considered unvaccinated, regardless if they have previously tested positive for COVID-19. Therefore, that employee must either be fully vaccinated or undergo weekly COVID-19 testing and wear a face covering in the workplace.

Are There Any Exceptions?

Yes, the ETS has created several exceptions to its requirements:

Remote Employees. Employees who do not report to a workplace where other individuals such as coworkers or customers are present or who work entirely from home are not subject to these requirements. If an employee reports to work on an irregular basis (e.g., once a month), the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace. For example, if an unvaccinated office employee has been teleworking for two weeks but must report to the office, where other employees will be present (e.g., coworkers, security officers, mailroom workers), on a specific Monday to copy and fax documents, that employee must receive a COVID-19 test within the seven days prior to the Monday and provide documentation of that test result to the employer upon return to the workplace.

Outdoor Employees. Employees who work “exclusively outdoors” are not subject to the weekly testing or face covering requirements. In order to qualify as work performed exclusively outdoors, the following criteria must be met:

  • The employee must only work outdoors (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of the ETS). The employee’s work must truly occur “outdoors,” which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.
  • The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle).
  • The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).

Employees Entitled to a Reasonable Accommodation. An employee is otherwise required to comply with the ETS, unless they can receive an exemption as a reasonable accommodation if they fall into three categories: those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination, testing, or masking requirements. Employees may receive an accommodation from the vaccination and/or weekly testing and face covering requirements of the ETS.

As discussed in our last alert, this can be a fact intensive situation so we recommend reaching out to your legal counsel if you are faced with an employee requesting an accommodation.

Who Pays For Testing?

In a move that appears designed to push workers to choose vaccinations over testing, the ETS does not require employers to pay for or provide testing to workers who decline the vaccine. However, state or local law, collective bargaining agreements or other circumstances may dictate otherwise.

For example, in California, the current Cal/OSHA ETS requires employers to pay for the costs of testing, including the time it takes employees to be tested. While the federal OSHA ETS includes specific language that the ETS is intended to comprehensively address vaccination, wearing face coverings, and testing requirements, the ETS also provides that it does not preempt more restrictive state or local requirements. While further guidance is necessary, it appears that employers such as those in California may still be hook for paying for the cost of testing. (Contact your local state legislators if you disagree with employers paying for this cost.)

The federal OSHA ETS requires the states to enact a rule that is at least as restrictive as the ETS by December 6, 2021. We expect that Cal/OSHA will explicitly state whether it adopts the ETS in full or will add further restrictions such as still requiring employers to pay for testing. Since employers have until January 4, 2022, before they have to implement weekly testing, they will likely know whether they have to pay for testing beforehand.

Do Employees Receive Paid Time off?

Under the ETS, employers are required provide up to four hours of paid time off, at the employee’s regular rate of pay, for each dose of the COVID-19 vaccine if received during working hours. This paid leave cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. Employers are not, however, obligated by this ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. Additionally, if an employee chooses to receive a vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine.

Employers must also allow employees to use their sick leave for time off to recover from vaccine related side effects. If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use their sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave or require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects. In other words, the employer cannot require an employee to go into the negative for paid sick leave if the employee does not have accrued paid sick leave when they need to recover from side effects experienced following a primary vaccination dose.

The ETS does not specify the amount of paid sick leave that the employer is required to provide for employees recovering from vaccine related side effects. Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. The CDC notes that side effects, if experienced, should go away in a few days. Accordingly, if an employer makes available up to two days of paid sick leave per dose for side effects, the employer would be in compliance with the ETS.

What Happens When An Employee Tests Positive?

Regardless of COVID-19 vaccination status or any required weekly COVID-19 testing, the employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. The employee must stay home until they:

  1. Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) if the employee initially tested positive using a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
  2. Meets the return to work criteria in CDC’s “Isolation Guidance”; or
  3. Receives a recommendation to return to work from a licensed healthcare provider.

This ETS does not require employers to provide paid time off to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time off may be required by state or local laws. For instance, the Cal/OSHA ETS requires employers to maintain an employee’s earnings if their COVID-19 exposure was “work-related.”

What Records Do Employers Have To Keep?

Employers must keep records of the vaccination status of all employees, and a record of each weekly test result required to be provided by each employee. These records are considered employee medical files and must be stored confidentially.

Employers must make available, for examination and copying, an individual’s COVID-19 vaccine documentation and any COVID-19 test results to that employee within one business day of the request. Additionally, employers must provide OSHA the aggregate number of vaccinated employees along with the total number of employees within 4 hours of a request from OSHA. Employees may also request the aggregate number of vaccinated employees from the employer and the employer must provide the information within one business day.

What Are The Penalties For Non-Compliance?

OSHA fines are generally determined by whether there are willful violations and how often violations occur. There is a standard penalty of up to $13,653 for a single violation, such as failure to provide paid leave or not having a vaccination program, rather than levying that fine per employee out of compliance. If there are multiple violations, or a particularly egregious violation the maximum penalty is $136,532 per violation.

Given OSHA’s limited resources, enforcement of the ETS will likely come from employee complaints rather than OSHA investigations. Regardless, employers should work quickly to incorporate the ETS’s requirements to avoid any potential exposure.

Health Care Workers Don't Have Testing Option Under Separate Rule

Also on November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) announced a requirement that health care workers be fully vaccinated by the same deadline, Jan. 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and non-clinical — at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid. These requirements also apply to contractors who work at healthcare facilities.

Since August 5, 2021, California health care employers have been subject to the Department of Health vaccine mandate, and at this point the CMS requirements do not appear to add any additional burdens.

Vaccination Deadline for Federal Contractors Extended to January 4, 2022

The previous deadline for employees of federal contractors was December 8, 2020. However, in an attempt to make it easier for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

Annual Update

Jeff Dinkin and Jared Speier will be discussing this guidance, mandatory vaccination, and other developments in employment law at their annual update on November 18, 2021 at 8 am. This is the one webinar you should not miss. Register here.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

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