FIFTH CIRCUIT BLOCKS ENFORCEMENT OF THE FEDERAL OSHA COVID-19 VACCINE/TESTING MANDATE.
On November 6, 2021, a panel of the fifth circuit issued a stay against the enforcement of OSHA‘s new emergency temporary standards mandating large employers to require vaccination or testing of their workforce. The court found that there are grave statutory and constitutional issues related to the mandatory emergency temporary standards that need to be addressed.
The challenge to the new OSHA mandate and application for the stay on its enforcement was brought by five states – four of which in the South – Texas, Louisiana, Mississippi, and South Carolina, and the fifth from out West – Utah.
We will continue to monitor the case and the status of the OSHA mandate.
On November 4, 2021 the federal Occupational Safety and Health Administration (“OSHA”) finally issued its “COVID-19 Vaccination and Testing; Emergency Temporary Standards” (“C-19 ETS”), along with a number of Fact Sheets, FAQs, and templates for a mandatory vaccination policy, and a vaccination, testing, and face covering policy. The C-19 ETS is scheduled to be published in the Federal Register on November 5, 2021.
As you may recall, President Biden issued an order instructing OSHA to issue a rule for large employers to require employees to either obtain a COVID-19 vaccination, or undergo regular testing. Under the C-19 ETS, employers with a total of 100 or more employees (with a few exceptions) must develop, implement, and enforce either a mandatory vaccination policy or a policy that allows either vaccination or regular COVID-19 testing and wear a face covering at work.
The C-19 ETS consists of 490 pages. But believe it or not, only the last 18 pages contain the actual OSHA rules. Below is just a brief summary of some of the main takeaways from the C-19 ETS:
- Effective date for the C-19 ETS is November 5, 2021.
- Some requirements to be met within thirty (30) days from effective date:
– Employer to establish policy on vaccination;
– Employer to determine vaccine status of employees, obtain acceptable proof of vaccination, maintain records and roster of vaccination status;
– Provide support (paid time off) for employees to start getting vaccinated;
– Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes;
– Provide employees information about the C-19 ETS, workplace policies and procedures, vaccination efficacy, safety and benefits, protection from retaliation and discrimination, and the laws that provide for criminal penalties for knowingly supplying false documentation.
- Some requirements to be met within sixty (60) days from effective date:
- Ensure employees are fully vaccinated or for those employees who are not fully vaccinated, that they are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
- OSHA expects the C-19 ETS to be in effect for six months from November 5, 2021, so through May 5, 2022.
State Approved OSHA Plans.
- States with OSHA-approved State Plans – like California – states have within 30 days of the promulgation date of the final federal rule (November 5, 2021) to eiher amend their standards to be identical or “at least as effective as” the new C-19 ETS, or show that an existing State Plan standard covering this area is already as effective. (29 CFR 1953.5(b).) The State Plan standard must remain in effect for the duration of the federal C-19 ETS.
100 Employee Threshold.
- If the employer has 100 or more employees on the effective date (11/5/21), the C-19 ETS applies. If the employer has fewer than 100 employees on the effective date of the standard, but then hits the 100-employee threshold, the employer is expected to come into compliance with the standards. Once an employer has come within the scope of the C-19 ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce.
- The 100-employee count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted.
- The following workers count toward the 100-employee threshold:
– Part-time employees;
– Direct hire temporary and seasonal employees (those not obtained from a temporary staffing agency);
– Employees who are minors;
– Employees working exclusively outdoors; and
– Employees working from home.
- The following individuals are not counted toward the 100-employee threshold:
– Independent contractors;
– Employees placed at a host employer location by a staff agency are not counted for the host employee 100-employee threshold.
Employer Vaccination Policies
- Employers are permitted to implement a partial mandatory vaccination policy that requires vaccination for employees that provide services directly to members of the public, but allows other employees the choice of vaccination or testing.
- Policies should address all of the applicable requirements in the C-19 ETS, including: requirements for COVID-19 vaccination; applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs); information on determining an employee’s vaccination status and how this information will be collected; paid time and sick leave for vaccination purposes; notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace; information to be provided to employees (e.g., how the employer is making that information available to employees); and disciplinary action for employees who do not abide by the policy.
- In addition to addressing the requirements of the C-19 ETS, the employer should include all relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement, all of which are necessary components of an effective plan.
- IMPORTANT: The OSHA website contains a “Mandatory Vaccination Policy” Template and an alternative “COVID-19 Vaccination, Testing and Face Covering Policy” Template that covered employers can use for compliance with the C-19 ETS.
Proof of Vaccination
- The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. The following list includes the acceptable documentation for proof of vaccination:
– 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).
- 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 instances where an employee is unable to produce acceptable proof of vaccination listed above, a signed and dated statement by the employee will be acceptable. The employee’s statement must:
– attest to their vaccination status (fully vaccinated or partially vaccinated);
– attest that they have lost or are otherwise unable to produce proof required by this section; and
– include 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.”
- Employees should also include in their statement, to the best of their recollection, 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) to be acceptable.
- To ensure employees are aware of potential consequences associated with providing false information when complying with the standard, paragraph (j) of the C-19 ETS requires employers to provide each employee with information regarding 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. Although employers are not required to monitor for or detect fraud, these same prohibitions on false statements and documentation apply to employers. If an employer knows that proof submitted by an employee is fraudulent, and even with this knowledge, accepts and maintains the fraudulent proof as a record of compliance with the C-19 ETS, the employer may be subject to the penalties under the statute.
Paid Time Off for Vaccination, Side-Effects, Travel Time
- Employers are required to provide reasonable time to each employee during work hours for each of their primary vaccination dose(s), including up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination. The maximum of four hours of paid time that employers must provide for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.
- An employer may require an employee to use paid sick leave or PTO when recovering from side effects experienced following a primary vaccination dose. If an employer provides employees with multiple types of leave (e.g. sick leave and vacation leave), the employer can only require employees to use the sick leave when recovering from vaccination side effects. An 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.
- Employers may set a cap on the amount of paid sick leave/PTO available to employees to recover from any side effects, but the cap must be reasonable. Based on the CDC’s guide that side effects usually go away in a few days, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would comply with the C-19 ETS.
- Employers are not obligated by under the C-19 ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination.
Testing in Lieu of Vaccination
- The employer is required to comply with the requirements of the C-19 ETS as long as it is in effect. If an employer has unvaccinated workers in the workplace, those employees will be required to have weekly tests until they are fully vaccinated or the C-19 ETS is no longer in effect.
- Under the C-19 ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:
– cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
– administered in accordance with the authorized instructions; and
– not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
- The employer must maintain a record of each test result required to be provided by each employee pursuant to the C-19 ETS or obtained during tests conducted by the employer. These records must be maintained as employee medical records and must not be disclosed except as required by the C-19 ETS or other federal law. Employee medical records must be maintained and preserved while the C-19 ETS remains in effect.
- The C-19 ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
- The C-19 ETS requires weekly COVID-19 testing of all unvaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.
- Unvaccinated employees are required to wear a face covering under the C-19 ETS when indoors and when occupying a vehicle with another person for work purposes, with certain.
- Unvaccinated employees who work remotely do not need to submit to weekly COVID-19 testing.
- For unvaccinated employees who come into the workplace 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.
There are other topics covered in the C-19 ETS including notification, and removal from the workplace, requirements when employees test positive for COVID-19; further information on what is a face covering and certain exceptions to wearing face coverings; information to be provided to employees and the manner for doing so; reporting COVID-19 fatalities and hospitalizations to OSHA; and recordkeeping obligations under the C-19 ETS.
You can find more information about the C-19 ETs, and copies of Fact Sheets, FAQs, and sample policy templates, here.