OSHA has indefinitely suspended implementation efforts of the new guidelines due to a Motion to stay enforcement granted on November 12 by US Court of Appeals for the Fifth Circuit. It is still to be seen how long this halt will last, but as of November 22, there are no further updates. We will keep this post up to date as more information is released.
The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees. OSHA’s new standard’s purpose is to establish “minimum” vaccination, testing, and face covering requirements to “address the grave danger of COVID-19 in the workplace.” The ETS is also intended to “preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.” This guidance was published in the Federal Register on November 5, 2021, and will go into effect December 5, 2021. This new guidance will affect nearly 84 million employees in America.
Who Must Comply?
The new OSHA COVID Emergency Temporary Standard applies to employers with at least 100 employees total until at least May 5, 2022. “Employees” include both part-time (or seasonal) and full-time employees of the employer. Independent contractors and staffing agency employees are not included. There are some additional exceptions to the legislation.
- First, the new standard does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
- Second, there is a carveout for settings where any employee provides healthcare services or healthcare support services and are already subject to the requirements of the Healthcare ETS.
- It also does not apply to employees who would fall within the scope but primarily work from home or exclusively outdoors.
What Does Compliance Entail?
Vaccination Status Reporting
Under this new guidance, employers are required to determine the vaccination status of each employee. Acceptable proof of vaccination status includes:
- Immunization records from health care providers or pharmacies;
- COVID-19 Vaccination Record Card;
- Medical records documenting the vaccination;
- Immunization records from an appropriate immunization information system;
- Any other “official documentation” that contains the pertinent information, including the type of vaccine, date, and who administered the vaccine.
If the employee does not have sufficient information to prove their vaccine status, they may instead use this attestation:
“I declare 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.”
Employers must keep these records safe as healthcare records.
COVID-19 Testing Frequency
Employers must have all unvaccinated employees that report to a workplace at least once every seven days be tested weekly and wear face coverings while in the workplace. Face coverings must be worn, subject to some exceptions. No mask is required:
- if the employee is alone in a room with floor to ceiling walls with the door closed;
- for a “limited time” while eating or drinking;
- when the employee is wearing a respirator or face mask; or
- if the employer can show that wearing a face covering is infeasible or causes a greater hazard, such as situations when the work requires the employee’s mouth to be uncovered.
Employers must keep records of the test results. If the test comes back inconclusive or positive, the employee must leave the workplace.
COVID-19 Testing Payment
Employees can be required to pay for the cost of their tests under the federal regulation. However, make sure to stay up to date on state regulation in case local governments shift the payment requirements to the employer.
Paid Time Off for Vaccination or Testing
Employers must provide up to four hours of paid time off to receive the vaccine, which could fall under pre-existing sick leave policy. Employers are not required to provide paid time off to any employee who is removed from the workplace due to a positive test. The ETS notes that paid time off under these circumstances may be required by a collective bargaining agreement or other law.
Implementing the Policy
Covered employers must establish, implement and enforce a written policy that satisfies the EST requirements. Additionally, employees who are partially vaccinated must be tested weekly until they are fully vaccinated. Further, Employers should ensure all employees understand the ETS requirements, have read CDC’s “Key Things to Know About COVID-19 Vaccines,” be made aware of the employee’s rights under the whistleblower provision of the OSH Act and section 1904.35(b)(1)(iv) of the record-keeping regulation, which prohibits retaliation when an employee reports a work-related illness and the criminal provisions in the OSH Act and other federal laws. OSHA concludes that these provisions prohibit falsifying a vaccination, testing, or other required record.
The ETS is effective as of December 5, 2021 which begins two clocks for covered employers. First, make sure that by thirty days after publication, the Employer should have all pertinent vaccine information from employees. Second, within sixty days after publication, begin testing for employees who have not received all doses for a primary vaccination.
Bear in mind that, per its terms, the new OSHA COVID Emergency Temporary Standard preempts state law on these issues. There are important legal consequences and implications attached to the ETS. Consult your HR and legal counsel today to discuss the requirements and necessary steps covered employers must implement.
The information herein is not legal advice and does not create an attorney/client relationship. The information is in the form of legal education and is intended to provide general information about the matter. The above is not, nor is it intended to be, legal advice. Consult your attorney with questions.