Updated as of 11/8/2021:
As you may have seen in the client alert below , on November 5, 2021, OSHA issued its vaccine-or-testing mandate for employers with 100 or more employees. The very next day, the federal 5th Circuit Court of Appeals issued an Order staying enforcement of the mandate nationwide. The Court will be reviewing further briefing on the issues in the next few days and will hopefully issue a final order soon after. But a ruling on this case could take days or even weeks. To make matters more murky, other legal challenges have already been filed and more are anticipated in several other federal courts around the country. These nationwide challenges signal that the mandate’s fate may well be determined by the Supreme Court.
We will continue to provide updates on the status of court challenges as well as if and when the mandate will take effect. For now, employers should continue to review OSHA’s new requirements in order to be prepared should the courts allow the mandate to stand. Contact your Raines Feldman attorney if you have any questions.
In the meantime, you can review a summary of the hotly debated new OSHA Emergency Temporary Standard in our client alert below:
On November 4, 2021, the federal Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”) and guidance regarding vaccination requirements for employees of large employers, which followed President Biden’s announcement many weeks ago that private employers of over 100 employees would be required to mandate COVID-19 vaccinations. Below we summarize the most salient aspects of the ETS.
Who Does the ETS Impact?
The ETS applies to private employers across the country with more than 100 employees companywide at any time while the ETS is in effect, regardless of whether the employer at some point drops below 100 employees while the ETS is operative. The ETS carves out employers in healthcare settings and creates a more stringent ETS for that industry, which does not allow the weekly testing option discussed below.
The ETS excludes employees who work exclusively remotely or outside, and those employees who do not work in person with any co-workers or customers. However, those employees still count toward meeting the 100 employee threshold.
When Does the ETS Go Into Effect?
The ETS is effective immediately. Covered employers, however, have 30 days (December 4, 2021) to comply with all requirements other than the full vaccination and testing/opt out requirements. Employers will have 60 days, or until January 3, 2022 to make sure that all their employees are fully vaccinated or that they have implemented a weekly testing protocol for their non-vaccinated employees to follow. OSHA expects the ETS to be in place for six months but may extend it if needed depending on infection rates at that time.
What Does the ETS Require?
- Develop Either (1) A Vaccination Policy or (2) A Vaccination With Testing/Mask-Option Policy
The ETS requires covered employers to establish, implement, and enforce either 1) a mandatory vaccination policy for all impacted employees or 2) a policy providing employees the option to be vaccinated or submit weekly testing results and wear a face covering (except when alone in a room, or while eating or drinking). It is also possible for a covered employer to have a mandatory policy that applies to some employees (for example client facing employees) and a testing or vaccination policy for other employees who perhaps work in less risky environments.
The policy must be in writing and distributed to all employees. The policy must include the following:
- Requirement for COVID-19 vaccination and to whom it applies;
- Applicable exclusions from the vaccination requirement (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;
- Information regarding paid time off and sick leave available for vaccination purposes;
- Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
- Masking and testing requirements for those unable to be vaccinated;
- How information is to be provided to employees;
- The policy’s effective date;
- Deadlines (e.g., for submitting vaccination information, for getting vaccinated); and
- Procedures for compliance and enforcement, which would include disciplinary action for employees who do not abide by the policy.
- Determine Employee Vaccination Status
Regardless of which option is chosen, covered employers must determine the vaccination status of all employees and obtain acceptable proof thereof, keep a roster showing the vaccination status of all employees, and confidentially maintain the proof of vaccination as employee medical records. If the employer has already determined vaccination status (with acceptable proof per the below), it does not need to do it again. Most of you have been tracking this information for purposes of the current Cal/OSHA requirements. However, the ETS is specific with respect to the ways employers may verify vaccination status. OSHA lists the following as acceptable proof:
- a 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). (Note that all this information should also be reflected in the other listed forms of proof).
Again, employers must confidentiality keep copies of the proof of vaccination.
- Provide Support for Vaccination
Employers must provide employees reasonable paid time off , including up to four hours of paid time, to receive each vaccination dose. In addition, the employee is also entitled to reasonable paid time off to recover from side effects experienced following each dose. While the paid time off to recover from the vaccine may be taken out of the employee’s existing sick leave benefits, the four hours of pay per dose to get the vaccine must be paid by the employer separately and cannot use accrued paid time off already available to the employee. Remember that both the California Supplemental Paid Sick Leave (specifically for COVID-19 related absences) and the 2021 extension of FFCRA pay both expired at the end of September and are no longer applicable.
- Provide Information to Employees
The ETS requires employers to provide the following to employees, in a language they understand:
- information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
- the CDC document “Key Things to Know About COVID-19 Vaccines”;
- information about protections against retaliation and discrimination; and
- information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Employers must also, upon request by an employee or employee’s representative and within one business day of the request, provide the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Who Has to Test for COVID-19, When, and Who Pays for Associated Costs?
The ETS permits employers to develop a testing and masking protocol that allows their employees to opt-out of the vaccine mandate. Under this testing plan, employers ensure that each employee who is not fully vaccinated is 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). The ETS indicates that employers need not pay for any costs associated with testing, unless payment is required by other laws, regulations, or collective bargaining agreements. However, nothing prohibits employers from voluntarily assuming the costs associated with testing, and we understand that given the current labor market, this may become an issue.
Testing is not required for employees who are not fully vaccinated and have received a positive COVID-19 test result within the preceding 90 days.
Employers must confidentially keep records of all testing results as an employee medical record.
Under the Rule, 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.
Of note, the ETS does allow for “pool testing” which means combining the same type of specimen from several employees and conducting one test on it. If the sample comes back positive, all employees who submitted a specimen will have to be individually tested. This method of testing may be helpful when large number of tests are needed.
What if an Employee Qualifies for a Medical or Religious Exemption to the Policies?
The ETS tip toes around the issue of what happens when employees request or qualify for a medical or religious exemption (which may involve routine testing or other accommodations). The ETS suggests employers are likely responsible for the cost of testing if testing is provided as an accommodation, but like other issues, this may be more fully explored in further FAQs.
What Happens if an Employee Tests Positive?
The ETS also contains information regarding removal and return to work timelines for employees who test positive for COVID-19. Employers should continue to follow local county health orders regarding isolation, quarantine, and return to work (assuming these rules are equal or more restrictive to the ones set out in the ETS), which have been changing from time to time over the course of the pandemic.
Where Can I Find More Information?
OSHA has published a set of FAQs, which are available at https://www.osha.gov/coronavirus/ets2/faqs. Like the FFCRA and other pandemic laws, we are certain that updates will be coming.
Conclusion
As stated above, stay tuned for information about the 2022 Raines Feldman Employee Handbook Program in the next few days, which will include more information about an updated vaccine policy for next year. In addition, feel free to contact your Raines Feldman attorney for help navigating these requirements and to create compliant policies for your workplace.
If you have any questions, please reach out to your Raines Feldman attorney or contact Lauren Katunich at lkatunich@raineslaw.com.