The Occupational Health and Safety Administration (“OSHA”) has issued a new emergency temporary standard (“ETS”) which requires employers with 100 or more employees to require their employees to be fully vaccinated or to test regularly for COVID-19 and wear a mask.
The ETS requires employees to be either fully vaccinated or commence testing by January 4, 2022. Below is important information employers need to know about the ETS.
The ETS applies to employers who have 100 or more full-time and part-time employees corporate-wide at any time the ETS is in effect. The number of employees is determined based upon a companywide headcount – not the number of employees at a particular worksite or location. Where two or more related companies handle safety matters as one company and are regarded as a single employer for OSHA purposes, the employees of each company must be counted together to determine coverage.
The determination of whether an employer meets the 100 employee threshold should initially be made using the date of November 5, 2021. If the employer has fewer than 100 employees on November 5, the standard would not yet apply. However, if an employer subsequently hires more employees and hits the 100 employee threshold for coverage, the employer must then comply with the ETS’s requirements. Once an employer has come within the scope of the 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 ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where any employee provides services subject to the Emergency Temporary Standard for healthcare employers.
Mandatory Vaccination or Vaccination/Testing Policy
Employers must implement a written mandatory COVID-19 vaccination policy or a written policy that requires employees to either be vaccinated against COVID-19 or undergo regular COVID-19 testing and wear a mask at work. Employers may mix-and-match by putting a mandatory vaccination policy in place for certain segments of their workforce and a vaccination/testing policy in place for other segments of their workforce.
Mandatory Vaccination Policy
If an employer elects to implement a mandatory vaccination policy, the policy must require all employees to be fully vaccinated, except employees: (1) for whom a vaccine is medically contradicted; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to a reasonable accommodation due to a disability or sincerely held religious belief.
Vaccination or Testing Policy
If an employer elects to implement a vaccination or testing policy, employees who are not fully vaccinated and who report at least once a week to a workplace where other individuals, such as co-workers and customers, are present must be tested weekly and provide documentation of their negative test result to the employer. Where an employee does not report to a workplace where other individuals are present at least once a week (e.g., an employee who teleworks), the employee must be tested within seven days prior to coming to the workplace and provide documentation of their negative test result to the employer. The employer must maintain and preserve a record of each test result required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer while the ETS remains in effect. Testing records are employee medical records that must be treated as confidential and maintained separate from employees’ personnel files.
The ETS does not require employers to pay for testing, however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.
Employees who are not fully vaccinated must wear a face covering in the workplace or when occupying a vehicle with another person for work purposes, unless the employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief.
Employees Not Covered
The vaccination and testing requirements of the ETS do not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
Determining Vaccination Status/Proof of Vaccination
To comply with the ETS, employers must determine the vaccination status of each employee. Employers must maintain a roster of each employee’s vaccination status and collect and maintain proof of vaccination for each employee who is fully or partially vaccinated.
Acceptable proof of vaccination includes: a record of immunization from a health care provider or pharmacy; a copy of the COVID-19 Vaccination Record Card; a copy of the 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). Where an employee is unable to produce acceptable proof of vaccination, the employee is required to provide an attestation of vaccination status.
These documents are employee medical records that must be treated as confidential and maintained separately from employees’ personnel files.
Notification of Positive Test and Removal
Employers must require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19 and immediately remove any such employee from the workplace, regardless of the employee’s vaccination status. Employees cannot return to the workplace until they satisfy the return-to-work criteria.
Paid-Time Off Requirements
Employers are required to provide a reasonable amount of time to each employee, including up to four hours of paid time at the employee’s regular rate of pay, to receive their vaccinations. Employers must also provide reasonable time and paid sick leave for employees to recover from side effects experienced following vaccination. These time off requirements do not apply to boosters.
Employers must provide employees with:(1) information on the requirements of the ETS and the employer’s policies and procedures to implement the ETS,;(2) the CDC document “Key Things to Know About COVID-19 Vaccinations:” (3) information about OSHA’s anti-discrimination and anti-retaliation protections; and (4) information about potential penalties for knowingly supplying false statements or documents.
December 5 Compliance Deadlines
Employers are required to comply with most of the ETS’s requirements by December 5, 2021, including establishing a policy on vaccination, determining the vaccination status of each employee, ensuring employees who are not fully vaccinated wear face coverings when indoors or occupying a vehicle with another person for work purposes, and providing employees with information about the ETS and the employer’s policies.
Several lawsuits challenging the legality of the ETS have already been filed and significant legal battles over the enforcement of the ETS are expected. Employers are encouraged to proceed with developing plans and procedures to implement the ETS, until advised otherwise.