OSHA Releases Vaccine and Testing Rule for Large Employers
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The much-anticipated Emergency Temporary Standard (ETS) to protect unvaccinated employees of large employers was released by the Occupational Safety and Health Administration today.
Who is covered? Employers with 100 or more employees. However, those employers covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety (federal contractors and subcontractors) and healthcare providers subject to vaccine mandates by other federal rules are not covered by the ETS.
What is required? Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to either get vaccinated or elect to undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination.
Mandatory Vaccine Option: If the employer adopts a mandatory vaccine policy, the policy must except employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or who is legally entitled to a reasonable accommodation based on disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement. (Although not specifically addressed, presumably the testing and masking requirements would apply to these employees.)
Covered employers must determine the vaccination status of each employee and whether the employee is partially or fully vaccinated. This can be done through a 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, other official documentation regarding administration of the vaccine, or when an employee is unable to produce acceptable vaccine proof, an attestation signed and dated by the employee attesting to their vaccination status.
Testing Option: To some surprise, the ETS does not require the employer to pay the costs of the weekly testing required of unvaccinated employees. However, if state or local law requires that to be paid, or a collective bargaining agreement or other negotiated agreement requires costs to be paid, then those apply.
To comply with the weekly testing option, the employer must ensure than an employee who reports to the workplace at least once every 7 days where other individuals are present is tested for COVID-19 at least once every 7 days and provide documentation of the most recent test result no later than the 7th day on which the last test result was provided. An employee who does not report during a period of 7 or more days to a workplace where other individuals are present must be tested within 7 days prior to returning to the workplace and provide documentation of the test result to the employer. If documentation is not provided timely, the employee must be removed from the workplace until a test result is provided. If an employee tests positive or is diagnosed with COVID-19, no testing can be required for 90 days following the positive test or diagnosis.
Additional requirements: Covered employers must provide a reasonable amount of time to each employee to receive the primary vaccination dose (whether one or two doses, depending on vaccine), and up to 4 hours of paid time to do so. The employer must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose for each dose.
Employers must also provide information to employees about the ETS requirements, COVID-19 vaccine efficacy, safety and benefits by providing the CDC’s “Key Things to Know about COVID-19 Vaccines,” and the retaliation prohibitions under the OSH Act.
Recordkeeping: The employer must maintain vaccination status records and each test result as confidential medical records.
Exceptions: Employees who work remotely (at home), who work exclusively outside, or who go to a workplace where others are not present are not required to be vaccinated or wear masks/engage in weekly testing.
Relevant deadlines: Beginning December 5, 2021 unvaccinated workers of covered employers must wear face coverings indoors (except in a closed room when the employee is alone) or in a vehicle with others for work purposes. The vaccine deadline is January 4, 2022. After that date, unvaccinated workers must show proof of a negative COVID-19 test on a weekly basis as discussed above.
Penalties: Penalties for violation of the ETS can range from $13,653 for a serious violation to $136,532 for a willful violation.
Kemp Smith’s Labor and Employment lawyers are available to assist with this, and any other employment-related issues.
Who is covered? Employers with 100 or more employees. However, those employers covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety (federal contractors and subcontractors) and healthcare providers subject to vaccine mandates by other federal rules are not covered by the ETS.
What is required? Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to either get vaccinated or elect to undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination.
Mandatory Vaccine Option: If the employer adopts a mandatory vaccine policy, the policy must except employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or who is legally entitled to a reasonable accommodation based on disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement. (Although not specifically addressed, presumably the testing and masking requirements would apply to these employees.)
Covered employers must determine the vaccination status of each employee and whether the employee is partially or fully vaccinated. This can be done through a 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, other official documentation regarding administration of the vaccine, or when an employee is unable to produce acceptable vaccine proof, an attestation signed and dated by the employee attesting to their vaccination status.
Testing Option: To some surprise, the ETS does not require the employer to pay the costs of the weekly testing required of unvaccinated employees. However, if state or local law requires that to be paid, or a collective bargaining agreement or other negotiated agreement requires costs to be paid, then those apply.
To comply with the weekly testing option, the employer must ensure than an employee who reports to the workplace at least once every 7 days where other individuals are present is tested for COVID-19 at least once every 7 days and provide documentation of the most recent test result no later than the 7th day on which the last test result was provided. An employee who does not report during a period of 7 or more days to a workplace where other individuals are present must be tested within 7 days prior to returning to the workplace and provide documentation of the test result to the employer. If documentation is not provided timely, the employee must be removed from the workplace until a test result is provided. If an employee tests positive or is diagnosed with COVID-19, no testing can be required for 90 days following the positive test or diagnosis.
Additional requirements: Covered employers must provide a reasonable amount of time to each employee to receive the primary vaccination dose (whether one or two doses, depending on vaccine), and up to 4 hours of paid time to do so. The employer must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose for each dose.
Employers must also provide information to employees about the ETS requirements, COVID-19 vaccine efficacy, safety and benefits by providing the CDC’s “Key Things to Know about COVID-19 Vaccines,” and the retaliation prohibitions under the OSH Act.
Recordkeeping: The employer must maintain vaccination status records and each test result as confidential medical records.
Exceptions: Employees who work remotely (at home), who work exclusively outside, or who go to a workplace where others are not present are not required to be vaccinated or wear masks/engage in weekly testing.
Relevant deadlines: Beginning December 5, 2021 unvaccinated workers of covered employers must wear face coverings indoors (except in a closed room when the employee is alone) or in a vehicle with others for work purposes. The vaccine deadline is January 4, 2022. After that date, unvaccinated workers must show proof of a negative COVID-19 test on a weekly basis as discussed above.
Penalties: Penalties for violation of the ETS can range from $13,653 for a serious violation to $136,532 for a willful violation.
Kemp Smith’s Labor and Employment lawyers are available to assist with this, and any other employment-related issues.
