Employment Law Alert

  
 

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) published a new emergency temporary standard regarding COVID-19 vaccination and testing (“ETS”). This ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering while at work. Employers should implement a written policy in keeping with the ETS that is readily accessible to all employees.

Employers with 100 or more employees across their business, including part-time employees, are required to comply with the ETS. The ETS does not apply to independent contractors or to businesses that have employees from staffing agencies. Employers that do not implement a mandatory vaccination policy must ensure that unvaccinated workers who report to a workplace where others are present are tested at least once a week for COVID-19, or within seven (7) days before returning to work, and that they wear a face covering as defined by OSHA. Any employee who receives a positive COVID-19 test or diagnosis, regardless of vaccination status, must be removed from the workplace and not return until it is safe and they meet the required criteria. OSHA allows employers to implement a partial mandatory vaccination policy that requires vaccination for certain employees while treating vaccination as optional and implementing testing requirements for others. For example, certain employees may have direct contact with customers or members of the public, while others work remotely.

Employees who are not fully vaccinated and who report at least once every seven (7) days to a workplace where other individuals are present must be tested for COVID-19 at least once every seven (7) days and provide documentation of the most recent test result to their employer no later than the seventh date following the last provided test result. In order to meet the requirements of the ETS, the test must be (1) cleared, approved, or authorized by the FDA, including in an Emergency Use Authorization, (2) administered in accordance with authorized instructions, and (3) not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. 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 is either done or observed by an employer.

The ETS overrides and preempts state and local requirements that attempt to prohibit vaccination mandates or otherwise bar the implementation of the ETS. However, the ETS does not preempt generally applicable requirements meant to protect public health by preventing the spread of COVID-19, such as mask mandates in indoor spaces, including businesses, regardless of vaccination status.

In order to ensure compliance with the ETS, employers must maintain a roster of each employee’s vaccination status and documentation of vaccination. Employers should obtain acceptable proof of vaccination status from employees and maintain records of each employee’s vaccination status. Vaccine documentation must be kept confidential and stored separately from an employer’s personnel files. According to OSHA, acceptable records include the vaccination record card, documentation from the state health department, or a signed and dated statement by the employee where no other form of documentation is available.

The ETS requires employers to provide reasonable time to each employee during work hours for each of their primary vaccination dose(s), including up to four (4) hours of paid time at the employee’s regular rate of pay. That paid time cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation. Employers can achieve this requirement by paying for the time to be vaccinated as work hours for up to four (4) hours. If an employee has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose. Employers that do not specify between different types of leave may require employees to use that leave when recovering from vaccination side effects. However, employers that provide multiple types of leave can only require employees to use sick leave when recovering from vaccination side effects. The ETS does not require employers to pay for testing or face coverings. However, employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements.

Employers must notify employees about these requirements and the policies and procedures established to implement the ETS. Additionally, the information provided to employees must include the CDC publication “Key Things to Know About Covid-19 Vaccines,” the OSHA rules prohibiting discrimination and retaliation, and laws that provide for criminal penalties for knowingly supplying false documentation.

Employers that implement mandatory vaccination policies must comply with applicable federal anti-discrimination laws and civil rights protections, including the Americans with Disabilities Act (ADA); Section 504 of the Rehabilitation Act (RA); Title VII of the Civil Rights Act of 1964; the Pregnancy Discrimination Act; and the Genetic Information Nondiscrimination Act. Employers should ensure they are in compliance with applicable federal law and provide appropriate accommodations, to the extent required, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.

By December 5, 2021, employers must establish a vaccination policy and determine the vaccination status of each employee, obtain acceptable proof, and create a roster of vaccination status. Additionally, by that date, employers must ensure employees who are not fully vaccinated wear face coverings when indoors, provide each employee information about the ETS and corresponding policies and procedures, and require employees to promptly provide notice of a positive test or diagnosis.

As of January 4, 2022, employers must ensure that employees who are not fully vaccinated are tested for COVID-19 weekly, or within seven (7) days before returning to work, if away for a week or longer. The ETS is anticipated to be in effect for at least six (6) months pursuant to any additional action by OSHA.

Importantly, Medicare and Medicaid certified health care providers and suppliers should ensure compliance with the new interim final rule by the Centers for Medicare & Medicaid Services (“CMS”) issued simultaneously with the ETS. The CMS interim final rule does not provide an option for weekly testing in lieu of vaccination for health care staff. Additionally, the ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or the Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502. If you have questions about how the ETS, or any other vaccination requirements may affect your business, please contact us for more help.

** On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of the OSHA ETS pending further action by the Court. We will keep you updated on the evolving status of the OSHA ETS.  In the meantime, we recommend employers who may be subject to the ETS become familiar with it and begin to prepare.

** On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit overturned the November 6th U.S. Court of Appeals for the Fifth Circuit decision staying enforcement of the OSHA ETS. That decision is currently on appeal to the United States Supreme Court. OSHA has announced that it will not issue citations for noncompliance before January 10, 2022, and will exercise discretion related to citation for noncompliance with testing requirements before February 9, 2022, if an employer is exercising reasonable good faith efforts to comply. We will keep you updated on the evolving status of the OSHA ETS.  In the meantime, we recommend employers who may be subject to the ETS become familiar with it and begin to prepare.

** On January 25, OSHA officially withdrew the COVID-19 mandate for employers with 100+ employees effective Jan. 26, 2022. OSHA is still going to consider the standard as a proposed rule through the typical rulemaking process, but the standard is being withdrawn and there is no current effective date.