On November 4^th, the Occupational Safety and Health Administration (OSHA) of the Department of Labor (DOL) announced the anticipated adoption of an Emergency Temporary Standard (ETS) requiring all employers of 100 or more employees to mandate COVID-19 vaccination or regular testing of all workers.

OSHA’s announcement can be found here: https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf.

SUMMARY

By December 5, 2021, all employers of 100 or more employees must adopt a written policy that requires either:

1. all employees to be vaccinated (except for those with medical or religious exemptions who must wear masks and be tested weekly for COVID-19) (a “Mandatory Vaccination Policy”), or
2. all employees to be vaccinated OR wear masks and test weekly for COVID-19, regardless of why they are unvaccinated (a “Vaccinate or Test Policy”).

Employees must be required to comply by January 4^th. Employers may adopt different policies for different departments or work groups.

PREEMPTION

OSHA’s ETS preempts all state and local standards on the topic, including any state or local order prohibiting vaccination mandates. The 22 states with their own OSHA-approved workplace safety and health programs may adopt rules at least equivalent to this ETS, if approved by OSHA. See https://www.osha.gov/stateplans/. This includes Alaska, California, Oregon, and Washington.

COVERED EMPLOYERS

The ETS covers all employers of 100 or more employees, except federal contractors/subcontractors and healthcare industry employers already covered by other OSHA standards mandating vaccinations with no alternative for regular testing. It also doesn’t apply to state and local governments that are subject to state plans, provided those states are required to adopt requirements for state and local governments that are at least as protective as the ETS. Employers must count all their employees wherever situated, including currently employed temporary and seasonal employees. An employer is covered if it employs 100 or more employees during the period the ETS is effective, regardless whether they are full-time or part-time.

COVERED EMPLOYEES

While all the employer’s employees count toward the 100-employee threshold, the vaccination policy need not be applied to those employees who do not report to a workplace where others are present, who work strictly from home, or who work strictly outside.

EFFECTIVE DATES

Although the ETS is effective on November 5^th, it gives covered employers until December 5^th (30 days) to adopt their preferred written policy. Employees must be required to comply with those requirements by January 4, 2022. January 4^th is also the new date for federal contractors to comply with their vaccination mandates.

POLICY AND COMMUNICATIONS

Again, covered employers will have until December 5, 2021 to adopt a policy. OSHA has provided samples of both options, and additional resources, that are available on it’s website at: https://www.osha.gov/coronavirus/ets2.

Employers are also required to provide employees information about the ETS and access to the policy adopted “in a language and at a literacy level its employees will understand.” If the policy itself does not include it, then employees must also be provided with (1) the CDC’s “Key Things to Know about COVID-19 Vaccines;” (2) information about the available protections against retaliation and discrimination; and (3) information about “laws that provide for criminal penalties for knowingly supplying false statements or documentation.” Again, versions of these documents are included in the resources available on the website.

EXEMPTIONS

Employers’ policies should exempt from any mandatory vaccination requirement employees who fall into one or more of the following categories: (1) where vaccination is medically contraindicated (for example, where they may be allergic to any of the ingredients or suffered a prior reaction), (2) where medical necessity requires a delay in vaccination, or (3) where the employee is legally entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. The OSHA website provides a link for accommodation resources here: https://askjan.org/topics/COVID-19.cfm.

VACCINATION VERIFICATION

Covered employers must obtain verification of employee vaccinations, and the ETS prescribes the acceptable forms: (1) the COVID-19 vaccination card; (2) a medical record of the vaccination; (3) a public health record of the vaccination; or (4) an attestation by the employee that meets specific standards outlined in the ETS and only when the employee has lost or is unable to obtain other proof. Employers need not re-verify for employees who provided proof of vaccination before November 5, 2021, even if that proof would not meet current ETS requirements.

Employers must retain employee proof of vaccination (which must be filed in the confidential medical folder as with other employee medical information) and maintain a written record of vaccinated and un-vaccinated employees.

COST AND PAID TIME OFF

Vaccinations are still readily available at no-cost to employees and this rule doesn’t confer any obligation on employers to pay for vaccination even should that change. However, employers must provide up to 4 hours of paid time off (including travel time) necessary for an employee to receive each vaccination dose. Other accrued leave may not be used for that purpose. In addition, employers must provide reasonable paid time off for those suffering vaccination side effects that prevent them from working. Sick leave and other accrued paid leave may be used for this purpose.

Under the ETS, employers need not pay for the cost of weekly testing, unless another law or contract requires it.

TESTING

Employees who are not vaccinated but who report to a workplace where others are present must be tested at least every 7 days and provide test results to the employer. Test methods must be FDA approved. Employees who do not comply must be removed from the workplace. An employee returning to the workplace from a leave or from remote work must provide a test result from with 7 days prior to the date they return to work.

Employees who test positive or have been diagnosed with COVID-19 must be (a) required to notify the employer and (b) excluded from the workplace in accordance with current CDC guidelines, and are not subject to further testing for 90 days.

Test results are to be kept by the employer as confidential medical records, which also have special retention rules.

MASKS AND FACE COVERINGS

Masks or other acceptable face coverings must be worn by unvaccinated employees when indoors or in vehicles with others, except when they are alone in a room, removing the mask for a security check, or eating or drinking. Employers may not prohibit any employee or visitor from wearing a face covering or a respirator.

DISCIPLINE

As with any safety policy, the vaccination policy must be enforced. Enforcement may require employee discipline or discharge. In unionized workplaces, collective bargaining agreements might apply to discipline under the policy.

RECORDS

Employers must keep as confidential medical records all proof of vaccinations and testing results, and provide employees with access to their own records of vaccination and testing upon request.

TRANSPARENCY OF VACCINATION STATUS

Employers must be able to produce records showing the aggregate number of fully vaccinated employees at the worksite and the total number of employees at the worksite, within 4 hours of a request by OSHA. This same information must be provided no later than the next business day to employees and employee representatives who request it.

REPORTING WORKPLACE INFECTIONS

Employers must report workplace infections which lead to hospitalization within 24 hours, and fatalities within 8 hours.

CONCLUSION

OSHA has yet to address the extension of this ETS to smaller employers, but suggested it may still do so, or possible booster shot requirements.

We hope that this snapshot of the key considerations and potential takeaways that we have outlined above is helpful to employers as they navigate these challenging issues. 

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