Got 100+ Employees? “Vax or Test” the Law of the Land Come January 4

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On Thursday, the U.S. Occupational Health and Safety Administration (OSHA) issued its long-awaited emergency temporary standard (ETS) requiring employers with 100 or more employees to mandate vaccinations or weekly testing and masking for their unvaccinated employees. Here’s what employers need to know.

Who is covered?

The ETS covers all employers regulated by the Occupational Safety and Health Act with 100 or more employees, with the exception of healthcare services. Healthcare workers are covered under a similar standard issued by the Centers for Medicare and Medicaid Services, also issued on Thursday.

Individual employees who work in the following environments are exempt from the ETS’s vaccination and testing requirements:

  • Employees who work alone, with no coworkers or customers present;
  • Employees who work from home;
  • Employees who work exclusively outdoors.

Does the ETS apply to school districts and other public sector entities in Illinois?

Potentially. Illinois is a state plan jurisdiction that has chosen to extend federal OSHA standards to state and local government workers. When OSHA adopts a standard like the COVID-19 vaccination ETS, a state plan state has 30 days to adopt a state ETS or to demonstrate to OSHA that an ETS is not necessary because the state already has a standard that is the same as or at least as effective as the federal standard.

Governor Pritzker’s Executive Orders mandating vaccination and testing requirements for public schools should satisfy the OSHA ETS’s vaccination and testing mandate. Key differences between the OSHA ETS and existing vaccination requirements for school districts and other Illinois public sector employers are the requirement to adopt a written vaccination policy, the extension of paid time off to receive the vaccine and recover from its side effects, and vaccination-related information that must be provided to employees. We will continue to monitor the situation and provide further guidance if it appears that school districts and other public employers covered by the existing Executive Orders will need to take additional steps to comply with the new ETS.

What do employers need to do, and by when?

The first compliance deadline for employers – adopting a written vaccination program, providing time off for employees to get vaccinated and ensuring that those who are not fully vaccinated are wearing face coverings – is December 5, 2021.

By January 4, 2022, employees must have received all recommended doses of a vaccine or be required to submit to weekly testing.

Why a “temporary” vaccination standard?

An emergency temporary standard allows OSHA to issue requirements without a period for public comment. The maximum period of time for an emergency temporary standard is six months, which means that this vaccination ETS will expire on May 5, 2022. To extend the ETS’ vaccination and testing requirements beyond that date, OSHA would need to issue a permanent standard.

What does the vaccination requirement mean?

OSHA’s vaccination requirement obligates employers to (1) support vaccination of their employees through paid time off, and (2) document employees’ vaccination status.

Paid time off. The ETS requires that employers provide up to four hours of paid time off, including travel time, for employees to receive the required dose(s) as well as reasonable time off and paid sick leave for an employee to recover from any side effects following vaccination. It is important to note that if an employee chooses to receive the vaccine outside of work hours, the preamble to the ETS indicates that the employee does not need to be paid for that time.

Documentation of employees’ vaccination status. Under the ETS, covered employers must determine and document the vaccination status of each employee, including whether the employee is fully vaccinated. Acceptable proof of vaccination status is one of the following:

  • Record of immunization from a health care provider or pharmacy;
  • A copy of the employee’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).

If an employee is unable to provide any of these items, the employer may accept a written statement from the employee attesting to whether they are fully or partially vaccinated or are unvaccinated and that they have lost and are otherwise unable to provide proof of vaccination status. The employee should also include, to the best of their recollection, the type of vaccine that they received; the date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). The written statement must be dated and signed by the employee and include the following, “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”.

An employee who does not provide acceptable proof of vaccination status must be treated as not fully vaccinated.

Employers must keep proof of vaccination for each employee and create a roster of employees’ vaccination status. Both the proof of vaccination and roster must be maintained for as long as the ETS is in effect (unknown at this time).

Must employers require that employees be vaccinated, and what happens if an employee refuses?

The ETS allows an employer to require that their employees be vaccinated without providing a testing option. However, if an employer decides not to require vaccinations, it must require employees to submit to weekly testing (or within 7 days before returning to work if the employee is away from the workplace for a week or longer). Employees must provide documentation of their most recent COVID-19 test result within 7 days of their last provided test result.

An employee who fails to provide timely test results cannot be permitted in the workplace until test results are provided.

As with employee vaccination status, employers must maintain a record of employee test results while the ETS is in effect.

What about face coverings – do employees still need to wear them?

Employers must require employees who are not fully vaccinated to wear a face covering when indoors or when driving with another person for work purposes, except:

  • When an employee is alone in a room with floor to ceiling walls and a closed door.
  • For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
  • When an employee is wearing a respirator or facemask (note that there are other OSHA standards that may apply in these circumstances, including the respiratory protection standard).
  • Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with the ETS).

The ETS does not require employers to provide or pay for face coverings, though it does recognize that employers may have that obligation under other laws or a collective bargaining agreement. In Illinois, Governor Pritzker’s Executive Orders have mandated that employers provide employees with face coverings.

Do employers have to pay for COVID testing?

The ETS does not require employers to pay for any costs associated with testing, though it acknowledges that employers may have that obligation under a collective bargaining agreement or another law or regulation. It is an open question whether the Illinois Medical Examination of Employees Act could be construed to require employer coverage of COVID-19 testing expenses.

What happens if an employee tests positive for COVID-19?

Employers must require employees to provide prompt notice of a positive COVID-19 test result or diagnosis and immediately remove a COVID-positive employee from the workplace until the employee satisfies one of the following:

  • The employee receives a negative result on a COVID-19 nucleic acid amplification test following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
  • The employee meets the return to work criteria in CDC’s “Isolation Guidance”; or
  • The employee receives a recommendation to return to work from a licensed healthcare provider.

Note that if an employee tests positive for COVID-19 or is diagnosed with the virus by a licensed healthcare provider, the ETS prohibits the employer from requiring further COVID testing for 90 days following their positive test result or diagnosis.

Do employers need a written vaccination policy?

Yes. Under the new ETS, employers must establish, implement and enforce either (1) a written mandatory vaccination policy, or (2) a written policy that allows employees to choose either to be fully vaccinated or provide proof of regular COVID-19 testing and wear a face covering. Being both unvaccinated and untested is not an option. As noted above, that written policy must be in place by December 5.

To meet the definition of “mandatory vaccination policy”, the policy must require: vaccination of all employees, including all new employees as soon as practicable, other than those employees for whom vaccination is medically contraindicated; for whom medical necessity requires a delay in vaccination; or who are legally entitled to reasonable accommodation due to disability or religious reasons.

Do employers still have to consider requests for disability and religious accommodation?

Yes. The ETS explicitly states that an employer may need to consider accommodations for employees who cannot be vaccinated or wear a face covering in the workplace or for whom not only vaccination and face coverings but also testing conflicts with the employee’s sincerely held religious belief. For the EEOC’s most recent guidance on disability and religious accommodation relating to COVID-19, click here.

Is there anything else besides the written policy that employers must provide?

The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand:

  • Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
  • The CDC document Key Things to Know About COVID-19 Vaccines;
  • Information about employee protections against retaliation and discrimination under the OSH Act; and
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

From a practical standpoint, most of these items could be included in the employer’s written mandatory vaccination or vaccination/testing policy.

What about employees who are covered by a collective bargaining agreement?

The ETS recognizes that employers and unions may agree to additional protective measures not required by the ETS and that it “does not supplant collective bargaining agreements or other collectively negotiated agreements in effect that may have negotiated terms that exceed the requirements” of the ETS.

How does the OSHA ETS impact state and local laws that may differ?

The introductory provisions of the ETS state that it is intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements and to “preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees”. 29 CFR 1910.501(a). Whether OSHA rulemaking, which does not have the same force and effect as legislation enacted by Congress, would withstand legal challenge on the preemption issue is yet to be seen.

There is much to digest in OSHA’s vaccination ETS. Franczek attorneys are available to assist employers with developing the written materials that must be provided to employees under the standard. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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