This morning, the Biden Administration issued two vaccine mandates, one focused on healthcare and another on all “large” employers. This update focuses exclusively on the large employer mandate issued by OSHA.
OSHA’s long-awaited emergency temporary standard for COVID-19 Vaccination and Testing (the “Vaccination ETS”) applies to most employers with 100 or more employees. Under the Vaccination ETS, employers must either implement a mandatory vaccination policy or a policy requiring employees to either be vaccinated or undergo weekly testing and wear a face covering instead of vaccination. The policy is expected to be published tomorrow (November 5, 2021) and require compliance 60 days later (January 4, 2022). The following are common questions we have received and answers provided by the OSHA regulation and published FAQs.
What employers and employees are covered by the Vaccination ETS?
All employers with 100 or more employees, other than healthcare providers who are already subject to the Healthcare ETS and federal contractors/subcontractors covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety, will be required to comply with the Vaccination ETS. The standard does not include guidance on how to count employees, but OSHA FAQs indicate that an employer should count all employees on a corporate or firm-wide basis regardless of location, but it should not count independent contractors, staffing agency employees, or employees belonging to other employers on a multi-employer worksite. The company should count all of its employees who work from home or work exclusively outside. In short, each company should count the employees that it considers its direct employees. While an employer must count employees who work from home or exclusively outside toward its 100-employee count, those employees who work from home or outside are not subject to the vaccination and testing requirements in the ETS.
Notably, the ETS regulations have also been added to OSHA’s Shipyard (1915), Marine Terminals (1917), Longshoring (1918), Construction (1926), and Agriculture (1928) standards to specifically address those areas of employment.
Again, the Vaccination ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working for home, or employees who work exclusively outdoors.
What new policies does the company need?
The Vaccination ETS requires that an employer have one of the following written policies
- A mandatory vaccination policy that requires vaccination of all employees, including vaccination of new employees as soon as practicable. The policy may exempt employees for whom a vaccine is “medically contraindicated” or “medical necessity requires a delay in vaccination.” The policy may also exempt employees who are legally entitled a reasonable accommodation because of disability or sincerely held religious beliefs that conflict with the vaccination requirement.
- A vaccination or testing policy, which allows an employee to choose either 1) to be fully vaccinated or 2) to provide proof of weekly testing and wear a face covering. The policy should also allow for accommodations for employees with disabilities or sincerely held religious beliefs that conflict with the policy requirements.
It is important to note that both options require the employer to engage the employee in the interactive process if accommodations are necessary under the ADA or Title VII.
Form policies are available on OSHA’s website, and more simplified or tailored policies might be considered upon consultation with your attorney.
When are employees required to be vaccinated?
Any unvaccinated employees must be tested beginning on January 4, 2022, which means that to avoid the testing requirements, employees must receive their final dose of the vaccine on or before January 4, 2022. Employees who receive their final dose on or before January 4, 2022, although they are not technically “fully vaccinated,” are not required to be tested. All unvaccinated employees must begin wearing masks by December 5, 2021.
OSHA has provided the following timelines in their FAQs:
- For the Janssen (Johnson & Johnson) COVID-19 vaccine, the primary vaccination series takes 1 day to complete. Employees who receive the Janssen vaccine therefore have to get their one Janssen dose on or before 60 days after publication [January 4, 2022] to be exempt from the testing requirements of paragraph (g).
- For the Pfizer-BioNTech COVID-19 vaccine, the primary vaccination series takes 21 days to complete. Employees receiving the Pfizer-BioNTech series therefore have to begin their primary vaccination series (i.e., get their first dose) on or before 39 days after publication [December 14, 2021] and get their second dose 21 days later.
- For the Moderna COVID-19 vaccine, the primary vaccination series takes 28 days to complete. Employees receiving the Moderna series therefore have to begin their primary vaccination series (i.e., get their first dose) on or before 32 days after publication [December 7, 2021] and get their second dose 28 days later.
What documentation is the company required to request from employees and what documents is it required to keep?
An employer is required to request and keep a copy of a proof of vaccination. Proof of vaccination documentation should include a vaccine card or similar medical record showing the employee has been vaccinated. If the employee cannot locate or obtain new proof of vaccination, they may attest to vaccination by signing a statement that includes specific language prescribed by OSHA. Any employee who does not present the requisite proof should be treated as unvaccinated. The company should maintain copies of the proof of vaccination and a roster of each employee’s vaccination status. An employer who requested and maintained documentation or attestations of vaccination before November 5, 2021 does not have to request additional documentation from their employees—the pre-ETS documentation will be acceptable.
An employer must also request and keep all testing records, including lab results or documentation of over-the-counter test results. Both testing records and vaccination records should be maintained as confidential medical records, separate and apart from regular personnel records.
Employees and OSHA are entitled to request documentation as follows:
|Party that can request||Documents requested||Must produce by|
|Employee or authorized employee representative||Their individual testing and vaccination records||End of next business day|
|Employee or employee representative||The aggregate number of vaccinated employees and the total number of employees (without names or identifying information)||End of next business day|
|OSHA||The written policy required by the Vaccination ETS||4 business hours after request|
|OSHA||All vaccination and testing records required to be kept by the Vaccination ETS||End of next business day|
If the company allows employees to choose a testing option in lieu of vaccination, how does the testing process work?
For an employee who enters the workplace at least once every seven days, the employee must be tested and provide proof of testing once every seven days. If the employee enters the workplace less often, they must provide proof of testing within the seven days prior to entering the workplace.
Employees can be tested by either laboratory tests or over-the-counter rapid tests. If the employee uses an over-the-counter test, the specimen collection and results should be observed by the employer. If the employee fails to provide test results or otherwise comply with the testing requirement, they should be removed from the workplace until they provide a test result.
Is the company required to pay for vaccination or testing?
The employer must provide up to four hours of paid leave for the employee to receive a vaccination (the vaccination itself is paid for by the federal government). The employer must also provide reasonable time and paid sick leave for an employee to recover from side effects of each vaccine dose.
The employer can choose whether it will pay for testing. Contrary to most OSHA regulations, the company can elect to have the employee bear the expense of testing as long as it complies with all other applicable laws.
Other than vaccination and testing, what other requirements does the ETS include?
While the Vaccination ETS focuses on vaccination and testing, it also includes several other components, including the following:
- Continued compliance with CDC guidance;
- Removal of positive employees from the workplace until the CDC return to work criteria is met;
- Additional requirements for employees who voluntarily wear respirators in the workplace (including N95s);
- Training: all employees must be trained on the requirements of the Vaccination ETS, COVID-19 vaccine efficacy, anti-retaliation rules, and the prohibition against knowingly supplying false statements or documentation;
- Reporting hospitalizations and fatalities due to COVID-19 directly to OSHA within 24 hours for a hospitalization or 8 hours for a fatality.
Are legal challenges likely, and if there are challenges, do I have to continue complying?
Yes and yes: legal challenges are highly likely but that does not mean you can ignore the Vaccination ETS. Even if a legal challenge receives a favorable ruling, whether the Vaccination ETS continues to be in effect depends on the language and scope of the court’s order. You should contact your attorney for a legal opinion before you choose to stop complying with the Vaccination ETS.
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