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OSHA Issues New Standards Regarding Vaccine Mandate and Testing for Private Employers

On November 4, 2021, in furtherance of President Biden’s vaccine mandate, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) applicable to employers with 100 or more employees. The ETS responds to a number of unanswered questions regarding the COVID-19 vaccination mandate and provides essential guidance to employers.

According to an OSHA webinar, the purpose of the ETS is to establish minimum requirements for vaccinations, vaccination verifications, face coverings, and COVID-19 testing to address the grave danger of COVID-19 in the workplace. OSHA estimates that, in acting to protect workers, it is establishing a standard that will reach two-thirds of all private-sector workers in the nation, including those working in the largest facilities.

The ETS pre-empts all state and local laws that interfere with the employer’s authority to require vaccinations, face coverings, or testing (such as those that ban employers from requiring these safety measures). The ETS is effective immediately upon publication in the Federal Register and sets out critical compliance dates.

Key Dates

By December 5, 2021, all covered employers must:

  • Establish a policy on vaccinations;

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of vaccination status;

  • Require employees to promptly provide notice of a positive COVID-19 test or COVID-19 diagnosis;

  • Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes;

  • Provide each employee with information about the ETS, workplace policies and procedures, vaccination efficacy, safety and benefits, protections against retaliation and discrimination, and the laws that provide for criminal penalties for knowingly supplying false documentation;

  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours; and

  • Make certain records available.

On January 4, 2022, a vaccine and testing mandate goes into effect (as described further below).

By January 5, 2022, all covered employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days of returning to work (if away from the workplace for a week or longer).

ETS Coverage

The ETS applies to all employers with 100 or more employees as of November 5, 2021, regardless of the number of employees working at a specific location. The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare.

The ETS does not apply to federal agency workplaces (covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety), federal contractors and subcontractors, and in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502). It also does not apply to employers with fewer than 100 employees at all times while the ETS is in effect or public employers in states without OSHA-approved State Plans.

Determining the 100-Employee Threshold

The 100-employee threshold is determined by counting all employees in all US locations and facilities, regardless of employees’ vaccination status or where they perform their work, at any time the ETS is in effect, even if the employer’s headcount falls below 100 employees. It includes full-time employees, part-time employees, and seasonal employees. It does not include independent contractors. Only staffing agencies count jointly-employed employees.

Employees Not Covered

The ETS does not cover employees who do not report to a workplace where other individuals are present, employees who work exclusively from home, or employees who work exclusively outside.

Unionized Workplaces

Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS. However, employers may agree with employees and their representatives to implement additional measures, and the ETS does not displace collectively bargained agreements that exceed the ETS’s requirements.

Vaccine Mandate and Policy

Pursuant to the ETS, covered employers must develop, implement, and enforce either: (1) a mandatory vaccination policy; or (2) a policy requiring employees to either get vaccinated or test once a week and wear a face covering at work. Employers choosing to implement the mandatory vaccine policy may use OSHA’s sample policy.

A mandatory vaccine policy requires each employee to be fully vaccinated (including new employees as soon as practical) other than 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 under federal civil rights laws due to a disability or a sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement. The ETS does not offer any exemptions to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. Alternatively, an employer may implement a written optional vaccine policy permitting each employee to choose between vaccination or mandatory weekly testing plus wearing a face covering in lieu of vaccination.

If an employer has a current policy in effect, it should evaluate the policy to ensure it meets all of the requirements of the rule and if not, make sure to modify and/or update the policy with any missing required elements.

The plan should be made readily accessible to all employees through the employer’s normal methods of distributing information to employees. Employers are not required to submit their written policies to OSHA, unless requested. However, OSHA may request the employer’s written plan for examination and copying, and the employer must respond within 4 business hours of the request.

Adverse Action Against Unvaccinated Employees

While the Occupational Safety and Health Act of 1970 (OSH Act) provides that an employer may not discharge or in any manner retaliate against an employee because the employee exercised any right under the OSH Act, an employer is not prevented from taking disciplinary action against employees for engaging in activities that are not protected by the OSH Act. Thus, an employee’s refusal to comply with the employer’s policy on vaccination would generally not be protected under the OSH Act’s retaliation provisions.

Notwithstanding this, before taking any personnel actions, employers should consult applicable law and/or labor management contracts.

Determining Employee Vaccination Status

Employers must determine the vaccination status of each employee and obtain acceptable proof of the vaccination status from each employee. The employer then must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. The employer must also maintain a roster of each employee’s vaccination status. These records and roster are considered to be confidential employee medical records and must be maintained in accordance with 29 CFR 1910.1020, and not disclosed except as required or authorized by the ETS or other federal law.

An employee may provide the following as acceptable proof of vaccination status: (1) a copy of an employee’s CDC vaccination card; (2) a record of immunization from a healthcare provider or pharmacy; (3) an immunization record obtained from a public health information system; or (4) any other official documentation stating the type of vaccine received and the vaccination dates. If an employee is not able to obtain any of these records, the employer may also accept a signed and dated statement from an employee: (1) attesting to the employee’s vaccination status (fully or partially vaccinated); (2) attesting that the proof required by the ETS is lost and unable to be produced; and (3) a declaration that the employee’s statement about his/her/their vaccination status is true and accurate, including other information specified in the ETS.

Employers must consider employees who do not provide an acceptable form of proof to be unvaccinated.

Employers Who Previously Determined Vaccination Status

Employers who previously ascertained employee vaccination status prior to the effective date of the ETS through another form, attestation, or proof and retained those records do not need to re-determine the vaccination status of individuals whose fully vaccinated status has been previously documented.

Permissible Vaccinations

An employee may be vaccinated through any of the COVID-19 vaccines approved by the FDA, including the Pfizer, Moderna, and Johnson & Johnson (Janssen) vaccines, or any vaccine listed for emergency use by the World Health Organization. An employee is considered to be fully vaccinated two weeks after receiving the last dose of a vaccine. To be fully vaccinated, an employee must have received either two doses of Pfizer’s or Moderna’s vaccines or one dose of Johnson & Johnson’s vaccine. An employee does not need to have received a booster shot to be considered fully vaccinated.

Paid Leave to Receive Vaccinations

Employers must provide employees with reasonable time, including up to four hours of paid time off to non-exempt employees, to receive each primary vaccination dose during regular work hours. This paid leave must be at the employee’s regular rate and cannot be offset by an employee’s available paid leave or sick leave benefits. Employers are not required to pay for travel, transportation, or other ancillary costs associated with vaccinations. Employers cannot require employees to use personal or sick time. However, employers are not required to pay employees who choose to be vaccinated outside of work hours.

Paid Leave to Recover from Vaccinations

Employers also must provide employees with reasonable time and paid sick leave to recover from any side effects experienced following each primary dose that prevents them from working. Such paid leave may be from an already existing sick leave policy or a PTO policy (but not from a vacation policy). If an employee does not have available paid sick time or PTO, then the employer must pay for this time.

Periodic Testing & Cost of Testing

Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly. Employers are not required to provide the testing or pay for any costs associated with the testing under the ETS.

Employers who approve religious or medical exemptions are still expected to require weekly testing unless the testing itself interferes with a sincerely held religious belief or a known disability.

While the ETS does not require employers to pay for the cost of testing unvaccinated employees, there may be state laws that require employers to pay for employee testing costs, and employers may be obligated to pay for testing required as part of a religious or medical accommodation from a vaccine requirement. A collective bargaining agreement may also require employers to pay testing costs for covered employees.

Payment of Time for Testing

The ETS does not specifically address whether employers must pay employees for the time spent to undergo testing, as this will be governed by the Fair Labor Standards Act (FLSA) and state law.

Permissible Tests

To qualify as a “COVID-19 Test” under the ETS, the test must be: (1) cleared, approved, or authorized by the FDA to detect a current COVID-19 infection; (2) administered as instructed by the manufacturer; and (3) not both self-administered and self-read unless observed by the employer or authorized telehealth proctor. Antibody tests do not qualify under the ETS as COVID-19 tests.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer. This includes both PCR and antigen tests, as well as rapid tests.

If an employee does not provide documentation of a COVID-19 test result as required by the ETS, the employer must not allow the employee to return to the workplace until the test result is provided.

The employee must present proof of a negative test result in order to report for work. If employees refuse to submit to testing in accordance with their employers’ requirements, they are not permitted to enter the workplace until they get tested.

An employer must not require an employee to undergo COVID-19 testing for 90 days after the employee tests positive or is diagnosed with COVID-19. This provision is specifically intended to prohibit screening testing for 90 days due to the high likelihood of false positive results that do not indicate active infection but are rather a reflection of past infection.

Employers must comply with the requirements of the ETS as long as it is in effect. In other words, an employer with unvaccinated workers in the workplace must require those employees to have weekly tests until they are fully vaccinated or the ETS is no longer in effect.

Maintaining Records of Test Results

Employers must maintain a record of each test result required to be provided by each employee or obtained during tests conducted by the employer. These records must be maintained in accordance with OSHA regulations (29 CFR 1910.1020) as employee medical records and must not be disclosed except as required by this ETS or other federal law. However, these records are not subject to normal OSHA retention requirements (29 CFR 1910.1020(d)(1)(i)). Instead, they must be maintained and preserved while this ETS remains in effect.

Positive COVID-19 Test or Diagnosis and Removal from the Workplace

Employers must require employees to provide prompt notice of a positive COVID-19 test or diagnosis. Employers must remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider until the employee meets certain criteria for returning to work.

The rule does not require unvaccinated employees to be removed from the workplace if they have had close contact with a COVID-19 positive person. However, the rule encourages employers to have a more robust removal program and to follow the guidelines of the Centers for Disease Control.

Further, the ETS does not require employers to provide paid time off for employees removed from the workplace due to testing positive for COVID-19. However, employers should be mindful that paid time off under these circumstances may be required by a collective bargaining agreement or other law.

Testing and Remote Employees

The testing requirement does not apply to the unvaccinated employees who do not report to a workplace where other individuals (such as coworkers or customers) are present or who work from home. However, if an employee is scheduled to enter the workplace, the employer must ensure the employee is tested for COVID-19 within 7 days prior to returning to the workplace and provides documentation of that test result to the employer upon returning to the workplace.

Face Coverings Mandates – Unvaccinated Employees

Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in limited circumstances. The ETS does not require employers to pay for face coverings for employees who are not vaccinated. However, other laws or collective bargaining agreements might require the employer to incur this cost.

Mandatory Employee Information and Training

Employers must provide each employee with educational information in a language and at a literacy level the employee understands about:

  • The ETS, including the employer’s policies implemented to comply with the ETS such as procedures for determining vaccination status, employee rights regarding time off and pay, records requests, and masks;

  • The efficacy of the COVID-19 vaccine, by providing them with the following document: “Key Things to Know About COVID-19”;

  • The requirements of OSHA regulation 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting work-related injuries or illness, and Section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, the ETS. (Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act (fact sheet available in English and Spanish)); and

  • The prohibitions of 18 U.S.C. § 1001 and of Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation (fact sheet available in English and Spanish).

Reporting Requirements

Employers are required to report work-related COVID-19 hospitalizations and fatalities to OSHA (within 24 hours of hospitalization and within 8 hours of a fatality). Under OSHA’s normal reporting standards, work-related hospitalizations and fatalities must be reported only if they occur within a certain time period following the work-related incident (24 hours for hospitalization and 30 days for a fatality). Those time periods do not apply to work-related COVID-19 hospitalizations or fatalities. In other words, employers must still notify OSHA even if the hospitalization or fatality occurs after those time periods.

Record Availability

Employers are required to maintain records of employee vaccinations and of test results for unvaccinated employees. The ETS states that the employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and the employee’s authorized representative by the end of the next business day after receiving a request.

Remember that all vaccine and testing records of employees should be kept separate and apart from their personnel files and comply with existing ADA requirements for confidential medical records.

Employers must also maintain records and ETS related policies available for inspection by OSHA. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Penalties for Non-Compliance

Employers face significant fines and penalties for failure to comply with the ETS. A citation for violation or failure to follow the ETS may result in a fine of $13,653 per violation. If the violation is willful or repeated, the employer may be fined up to $136,532.

For more information on the ETS and its requirements, OSHA has provided a summary and FAQs to aid compliance.

Challenges to the ETS

The ETS is likely to face several legal challenges, and, in fact, its enforcement has already been temporarily stayed or halted by the United States Court of Appeals for the Fifth Circuit. Thus, the ETS is not currently enforceable with respect to workplaces located within Louisiana, Mississippi, and Texas.

This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.