OSHA Issues Emergency Standards for COVID-19 Testing and Vaccination in the Workplace

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McNees Wallace & Nurick LLC

[co-author: Gregory Archibald]

On November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) imposing requirements pertaining to vaccinations, testing and face coverings on private employers throughout the country.

Which businesses does the ETS apply to? The ETS applies to employers with 100 or more employees, including full-time, part-time, active seasonal and teleworking employees. Independent contractors and temporary employees provided through a staffing agency are not counted by the host employer for purposes of the 100-employee threshold. Employers that are covered by the ETS remain covered for as long as the ETS remains in effect, regardless of whether the employer’s headcount falls under 100 employees during that period. A single corporate entity with multiple offices or locations must include every employee in every facility in their count. On the other hand, separate legal entities that are part of the same family of companies may be counted separately unless their operations are sufficiently intertwined for OSHA to deem them a single employer.

What does the ETS require? All employers subject to the ETS must either require employees to become fully vaccinated for COVID-19, subject to certain exceptions outlined below, or adopt a policy that requires any unvaccinated employees to submit to weekly COVID-19 testing and wear a face covering when working indoors. Employers may also choose to require vaccinations for certain groups of employees (i.e. those in customer-facing positions) while granting the testing option to other groups.

Employers that permit unvaccinated employees to test on a weekly basis are not required to pay for the tests unless required to do so under state or local law. Over-the-counter antigen tests are permitted for purposes of compliance so long as their administration is observed by either an authorized telehealth proctor or the employer.

Additionally, employers must determine the vaccination status of every employee and maintain a vaccination record (i.e. copy of a vaccine card) for each employee who is vaccinated. Employers who have ascertained vaccination status prior to the effective date of the standard are permitted to rely upon the process previously used and are not required to have employees who had previously shown proof of vaccination to do so again, or to submit a copy for the employer’s records.

Employers must provide time off for employees to get vaccinated. This will include up to four paid hours for each dose of the vaccine, as well as reasonable paid sick time to recover from any side effects.

When do these requirements go into effect? Numerous lawsuits have been filed in federal Circuit Courts across the country. On November 6, 2021, the 5th Circuit Court of Appeals stayed the implementation of the ETS, citing “grave statutory and constitutional issues.” Since multiple lawsuits have been filed in various circuit courts, these challenges will be consolidated to a single circuit court through a lottery process. The circuit court chosen to hear the consolidated cases will ultimately decide whether the ETS is a valid exercise of OSHA’s authority.

Assuming the ETS goes into effect as planned, covered employers must implement all of the ETS requirements other than weekly COVID-19 testing for unvaccinated employees by Monday, December 6, 2021. Weekly testing of unvaccinated employees must begin on Tuesday, January 4, 2022.

Are there any exemptions? The ETS does not apply to: 1) employees that do not report to a workplace where others are present; 2) employees while they are working from home; and 3) employees that work exclusively outdoors and do not regularly occupy vehicles with co-workers or enter indoor spaces in connection with work (e.g. administrative offices or multi-stall restrooms) on more than an infrequent basis for brief periods. Also, unvaccinated employees who have tested positive for COVID-19 are not required to participate in weekly COVID-19 testing for 90 days following the positive test.

In addition, the ETS does not apply federal government contractor and subcontractor workplaces that are covered under Executive Order 14042, healthcare providers subject to the OSHA’s existing Healthcare ETS (29 C.F.R. 1910.502), or employers that are generally outside of OSHA’s jurisdiction (i.e., state and local governments).

Covered employers may also need to provide reasonable accommodation to employees who cannot be vaccinated due to sincerely held religious beliefs a disability or other medical necessities, but would still need to require such unvaccinated employees to undergo weekly testing unless a separate accommodation would exempt them from that requirement as well.

What if an employee tests positive for COVID-19? Employers must require employees that receive a positive COVID-19 test result or diagnosis to report the results to the employer promptly. Employers must remove any employee with a positive COVID-19 test result or diagnosis from the workplace immediately, regardless of vaccination status and follow stated protocols before permitting them to return to work.

Reporting and Recordkeeping Requirements The ETS expands existing reporting and recordkeeping requirements relating to COVID-19 fatalities and hospitalizations. Employers are required to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them. If an employee is hospitalized after a work-related COVID-19 infection, the employer must notify OSHA within 24 hours of learning of the hospitalization. Previously, only fatalities that occurred within 30 days of a workplace exposure and hospitalizations which occurred within 24 hours of a workplace exposure needed to be reported. Employers must also make all employee COVID-19 vaccination documentation and test results available to OSHA for inspection upon request, and must disclose to employees or their representative, upon request, the number of vaccinated employees at a workplace along with the total number of employees at that workplace.

Other Requirements In addition to the above, employers must provide the following information to employees: 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.

To Learn More The McNees Labor & Employment Practice Group will present two webinars on the new OSHA ETS on November 9 from 3:00 – 4:00 p.m. and November 12 from 3:00 – 4:00 p.m. You may also contact any member of the Practice Group with any questions you may have.

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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