OSHA Issues Emergency Temporary Standard on COVID-19 Vaccination & Testing Requirements for Large Private Employers
As employers will recall, earlier this year President Biden announced a six-prong COVID-19 Action Plan, which, among other things, required all employers with 100 or more employees to ensure that their workers are vaccinated or periodically tested for COVID-19. Today, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (the “ETS”) implementing this requirement. Although the ETS imposes a variety of obligations on covered employers, most notably, employers with 100 or more employees are required to either establish a mandatory written vaccination policy for employees, or alternatively establish a written policy whereby unvaccinated employees submit to weekly COVID-19 testing and wear face coverings in the workplace.
Under the ETS, employees must either be fully vaccinated by January 4, 2022, or be subject to the testing requirements discussed below at that time. Other aspects of the ETS, including but not limited to the written policy requirement, face covering requirement, and the additional leave for vaccination and recovery from vaccine side effects, go into effect December 6, 2021.
Below is a summary of the main requirements of the ETS:
Scope of the ETS
The ETS applies to employers with a total of 100 or more employees during any time the ETS is in effect. Once the employer qualifies for coverage under the ETS, the employer continues to be covered by the ETS for the entire time it is in effect, regardless of whether the number of employees subsequently drops below 100.
The requirements of the ETS do not apply to (1) workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or (2) settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the COVID-19 Healthcare Emergency Temporary Standard. Employees who provide healthcare services are already subject to a separate OSHA ETS on workplace safety, as well as more stringent requirements recently issued by the Centers for Medicare & Medicaid Services.
The requirements of the ETS also do not apply to employees (1) who do not report to a workplace where other individuals such as coworkers or customers are present; (2) while working from home; or (3) who work exclusively outdoors.
OSHA anticipates that the ETS will remain in effect for at least six months; however, OSHA will update the ETS as appropriate based on the conditions of the pandemic.
Policy Requirements
Employers must establish, implement, and enforce a written mandatory vaccination policy. To qualify as a mandatory vaccine policy, the policy must require full vaccination of all employees, including vaccination of all new employees, as soon as practicable, other than those employees: (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to a reasonable accommodation from a vaccination requirement due to a disability or sincerely held religious belief.
If an employer does not want to implement a mandatory vaccination policy, it must establish, implement, and enforce a written policy allowing an employee to choose to either be fully vaccinated or to both provide proof of regular testing for COVID-19 and wear a face covering.
OSHA has issued model policies, available here.
Determination of Employee Vaccination Status
Employers must determine the vaccination status of each employee.
Employers must require that each vaccinated employee provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
Any employee who does not provide their employer with acceptable proof of vaccination must be treated as not fully vaccinated for purposes of implementing the vaccination and testing requirements of the ETS. Employers must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee. The employer must also maintain a roster of each employee’s vaccination status.
Although the testing requirement for unvaccinated employees does not go into effect until January, employers must collect and maintain these vaccination records and the roster effective December 6, 2021.
The ETS states that vaccination status and COVID test results (discussed below) are considered medical records and should be treated as such. However, the ETS notes that these records are not subject to OSHA’s 30-year retention requirement for certain medical records.
Employer Support for Employee Vaccination
Employers must provide a reasonable amount of time off to each employee for each of their primary vaccination doses. “Primary vaccine doses” refers to the doses required of a particular vaccine course to be fully vaccinated. For example, the Johnson & Johnson vaccine has one primary vaccine dose, while the Pfizer and Moderna vaccines have two primary vaccine does. Employers must provide up to 4 hours of paid time off at the employee’s regular rate for time an employee spends getting their primary vaccination doses, including travel time. This paid time is in addition to pre-existing paid time off, such as sick leave or vacation time. Additional unpaid time off may be required if “reasonable.”
Note that certain locations, such as New York State, already require employers to provide employees with four hours of paid time off per vaccine injection.
Employers must also provide reasonable paid time off to recover from side effects experienced following any primary vaccination dose. Employers may require employees to use already accrued paid sick leave for this time. However, employers cannot require employees to use unaccrued sick leave or accrue a negative sick leave balance to recover from vaccination side effects.
Testing Mandates for Employees Who are not Fully Vaccinated
If an employee is not fully vaccinated and reports at least once every seven days to a workplace where other individuals (e.g., coworkers, customers) are present, the employee must be tested for COVID-19 at least every seven days. The employee must provide documentation of their most recent COVID-19 test result to the employer no later than seven days after they provided their last test result.
If an employee is not fully vaccinated, but reports to work less frequently (e.g., teleworking for two weeks prior to reporting to a workplace with others), the employee must be tested for COVID-19 no more than seven days before returning to the workplace. The employee must provide documentation of the test result to the employer upon return to the workplace.
If an employee who is not fully vaccinated does not provide timely documentation of a COVID-19 test result, the employer must keep that employee removed from the workplace until the employee provides a test result.
The ETS notes that it does not require the employer to pay for any costs associated with testing, but that employer payment for testing may be required by other laws, regulations, or collective bargaining agreements. Employers are also not prohibited from paying for costs associated with these testing requirements. In addition, while the ETS is silent on this point, employers may need to consider whether they are required to pay for testing as a reasonable accommodation for employees with a disability- or religion-based conflict with COVID-19 vaccine requirements.
Employers must comply with these testing requirements by January 4, 2022. However, employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period.
Employee Notification to Employer of a Positive COVID-19 Test and Removal
Regardless of the type of policy adopted by the employer, the employer must (1) require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider, and (2) immediately remove from the workplace an employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.
The ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or COVID-19 diagnosis. However, paid time off may be required by other laws, regulations, or collective bargaining agreements.
Face Coverings
The ETS makes a distinction between “face coverings” and “facemasks.” A face covering means a covering that (1) completely covers the nose and mouth, (2) is made with two or more layers of a breathable fabric that is tightly woven, (3) is secured to the head with ties, ear loops, or elastic bands that go behind the head, (4) fits snuggly over the nose, mouth, and chin with no large gaps on the outside of the face, and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings. A facemask, on the other hand, means a surgical, medical procedure, dental, or isolation mask that is FDA-approved.
Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except (1) when an employee is alone in a room with floor to ceiling walls and a closed door; (2) for a limited time when the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements; (3) when an employee is wearing a respirator (such as an N95) or facemask; or (4) where the employer can show that the use of face coverings is infeasible or creates a greater hazard (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
Employers may not prevent any employee from voluntarily wearing a face covering or facemask unless the employer can demonstrate that doing so would create a hazard of serious injury or death, such as interfering with the safe operation of equipment.
The ETS permits, but does not require, the employer to pay for any costs associated with face coverings. However, employer payment for face coverings may be required by other laws, regulations, or collective bargaining agreements.
Notice to Employees
Employers must inform each employee, in a language and at a literacy level the employee understands, about the following:
The requirements of the ETS and any employer policies and procedures established to implement the ETS.
COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html.
Federal requirements that prohibit the employer from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness or exercising rights under OSHA.
Federal law providing for criminal penalties associated with knowingly supplying false statements or documentation.
Reporting COVID-19 Fatalities and Hospitalizations
Employers must report to OSHA (1) each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality and (2) each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the hospitalization.
Availability of Records
An employee, or anyone having written authorized consent of the employee, may request that the employer provide the employee’s individual COVID-19 vaccine documentation and COVID-19 test results. Employers must provide the requested information by the end of the next business day after the request.
An employee or an employee representative may also request from the employer the aggregate number of fully vaccinated employees at the workplace and the total number of employees at the workplace. The employer must make that information available to the requester by the end of the next business day after the request.
Employers have an obligation to provide vaccination information to OSHA at its request: Within 4 business hours of OSHA’s request, the employer must provide its written vaccination policy, the number of employees at the workplace, and the aggregate number of fully vaccinated employees at the workplace. In addition, by the end of the next business day after OSHA’s request, the employer must provide all other records and documents employers are required to maintain under the ETS.
Employers with 100 or more employees should review their pre-existing COVID-19 vaccination policies, as well as policies on COVID-19 testing and face coverings, for compliance with the ETS. Employees without such policies should begin considering what type of policy to generate and how to implement the same. If you have any questions regarding creation or implementation of a COVID-19 vaccination or testing/masking policy, please contact Amanda M. Baker at abaker@fglawllc.com or any attorney at the Firm.
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