OSHA Vaccination & Testing Mandate for Larger Employers

On November 4, 2021, the federal Occupational Safety & Health Administration (“OSHA”) published the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure workers are fully vaccinated or tested for COVID-19 on at least a weekly basis.

On November 6, 2021, the Fifth Circuit temporarily stayed the ETS, due to suspected “statutory and constitutional issues.” The temporary stay does not have immediate impact as the deadline for compliance with the vaccine/testing mandate is January 4, 2022 (see further info below). The Surgeon General, Dr. Vivek Murthy, stated the administration is “prepared to defend” the ETS, and indicated they are important to make workplaces safe. We will provide further updates on the stay as they become available.

Below is a summary of several of the ETS rules and frequently asked questions (FAQs). Employers are advised to review the ETS and FAQs in full to confirm compliance.

Effective date

According to the FAQs, the effective date for the ETS is November 5, 2021. Although the ETS becomes effective immediately, employers are generally not required to comply with the vaccination verification requirement until January 4, 2022.

Employers must implement a vaccination policy starting December 4, 2021 – model policies are available on OSHA’s website.

OSHA anticipates the ETS will be in effect for six months from the date of publication (i.e., May 4, 2022). However, OSHA may update the ETS based on available information relating to COVID-19 and risks or reduced risks for covered workforces.

Scope

The ETS covers all employers with a total of 100 or more employees at any time while the ETS is in effect. Federal contractors and health care provider services are excluded as they are covered under different guidelines.

Employee Count

In determining the number of employees, employers must include all employees across all of their U.S. workplaces. This includes full/part time employees, telecommuting employees, and temporary or seasonal employees. Independent contractors and employees of staffing agencies are excluded. To clarify, only the staffing agency would count these workers for purposes of the 100-employee threshold.

Employers who have fluctuating employee numbers would need to comply if on the effective date (November 5, 2021) they have at least 100 employees. The requirement would apply for the duration of the ETS, even if after the effective date, the number of employees drops under 100.

Excluding Employees from the Vaccination Requirement

The vaccination requirements do not apply to employees who do not report to a workplace where other individuals (e.g. coworkers or customers) are present; who work from home; or who work exclusively outdoors.

To qualify as “exclusively outdoors”, the following must apply:

• The employee must work outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt).
• The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle).
• The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).

The FAQs clarify that construction employees who work in a building under construction – where substantial portions of the structure are in place – are not considered as “exclusively outdoors.”

Written Mandatory Vaccination Policy and Limited Exception

The ETS requires covered employers to “establish, implement, and enforce a written mandatory vaccination policy” requiring each employee to be fully vaccinated against COVID-19. The policy must require vaccination of all employees but may exclude employees:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or
• Who are legally entitled to a reasonable accommodation due to disability or sincerely held religious beliefs, practices, or observances.

Alternatively, employers may also adopt a non-mandatory vaccination policy, provided the policy requires unvaccinated employees to regularly get tested for COVID-19 (generally, once a week) and wear a face covering.

Employers are also permitted to adopt a partial mandatory vaccination policy that requires vaccination for employees who interact directly with the public but allows others (e.g., headquarter or teleworking employees) the choice of vaccination or testing.

OSHA provided template policies that can be found here.

Employers with existing vaccination policies must modify and/or update their current policies to incorporate any missing required elements, per the ETS, and must notify employees of modifications, if any.

Paid Time to Obtain Vaccination and Recover

The ETS requires covered employers to provide paid time to obtain the vaccine, up to 4 hours per injection, as well as paid time to recover. Employers may set a cap on the recovery time. OSHA presumes that up to two (2) days of paid sick leave per primary vaccination dose for side effects, would be in compliance with the recovery requirement.

Per the FAQs, an employee’s accrued sick leave balance may not be used for a vaccination appointment, but employers may require use of accrued paid sick leave for recovery purposes. Vacation time is not permitted for recovery purposes.

California Employers:  Proceed with caution. California law does not generally permit employers to require use of paid sick leave under state rules. Therefore, the ETS may be in conflict with the California sick leave rules. Employers should consult with counsel before making a decision regarding compelled use of accrued sick leave.

Employees who have exhausted their sick leave and need time to recover, cannot be compelled to accrue negative sick leave or borrow against future sick leave. In other words, employees who need recovery leave and exhausted their sick leave balance, should receive additional paid sick time for recovery purposes.

Determining Employees’ Vaccination Status

Per the ETS, acceptable proof of vaccination status includes:

• The record of immunization from a health care provider or pharmacy;
• A copy of the 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);

If employees are unable to produce acceptable proof of vaccination as described above, they may provide a signed and dated statement attesting to their vaccination status, that they have lost or are unable to produce the required proof, and include the following language:

“I declare (or certify, verify, or state) 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.”

Written Record of Vaccination Status

Covered employers must maintain a confidential record of employees’ vaccination status and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. Employers must also maintain a confidential roster that indicates for each employee whether they are fully vaccinated, partially vaccinated, not fully vaccinated due to medical/religious accommodation, or not fully vaccinated because they have not provided proof.

Information on booster shots does not need to be included.

Costs Associated with Testing

While the ETS does not require employers to pay for any costs associated with testing, it recognizes that “employer payment for testing may be required by other laws.”

California Employers: Covered California employers must comply with the requirement of Labor Code Section 2802 and reimburse employees for costs associated with testing.

Tal Burnovski Yeyni represents employers and management.