Top Takeaways from OSHA’s New Employer Vaccination Rules

Client Alert

On November 4, 2021, OSHA issued its hotly anticipated emergency temporary standard (ETS) requiring employers with 100 or more employees to implement vaccination and testing programs. Stopping short of a full mandate, the ETS strongly encourages all employers to mandate employee vaccination but provides a testing and masking alternative for those employers who choose to opt out.

Specifically, the ETS requires employers with 100 or more employees to ensure that their workforce is fully vaccinated or to require unvaccinated workers to produce negative COVID-19 test results weekly and wear face coverings at the workplace.

The ETS provides employers with much-needed clarity regarding the mandates announced by President Biden in September. Manatt provides the top takeaways here and will explore the ETS again in a webinar on November 17, joined by Dr. Paul Simon, Chief Science Officer for the Los Angeles County Department of Public Health. Additionally, click here to access Manatt Health’s summary of updates to regulations that apply to health care employers regulated by the Centers for Medicare & Medicaid Services.

UPDATE: On Saturday, November 6, the U.S. Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of the ETS, citing “grave statutory and constitutional issues.” Other lawsuits challenging the ETS have been filed in the Sixth, Seventh, Eighth and Eleventh Circuits. The Fifth Circuit ordered the government to respond to a request for a permanent injunction by Monday, November 8, and allowed challengers to reply by Tuesday at 5 p.m. A decision regarding a more lasting injunction may be rendered as soon as this week.

What does this mean for employers? It means that OSHA may not enforce the ETS at this time, and the ultimate fate of the ETS may not be known for weeks or months. While the legal challenges are pending, employers should take time to learn the requirements of the ETS and be prepared to comply immediately if the stay is lifted.

The ETS clarifies which employers are covered by the new rules.

The ETS applies to employers with 100 or more employees at any time the ETS is in effect, on an enterprise-wide basis, regardless of work location. For purposes of the ETS, the term “employees” includes temporary and seasonal workers.

The ETS does not apply to employers subject to the vaccination mandates applicable to either (1) federal contractors or (2) health care employers regulated by the Centers for Medicare & Medicaid Services. In addition, the ETS does not apply to employees who (1) work from home, (2) work exclusively outdoors, or (3) do not report to a workplace where other individuals, such as coworkers or customers, are present.

The ETS sets two different compliance deadlines.

The ETS is effective immediately, and employers must comply with all requirements by December 5, 2021, except for those related to weekly testing of unvaccinated employees. Employers will have until January 4, 2022, to comply with testing requirements.

The ETS encourages, but does not require, complete workforce vaccination.

The ETS strongly encourages covered employers to adopt mandatory vaccination policies and permits covered employers to adopt complete or partial mandatory vaccination policies. As such, employers may require a portion, but not all, of their workforce to be vaccinated.

Employers must provide employees with up to four hours of paid time for each vaccination dose during work hours, as well as reasonable time off and paid sick leave to recover from side effects of vaccination. The ETS does not require employers to pay for the cost of travel to/from a vaccination site.

Additionally, employers that implement a mandatory vaccination policy must provide reasonable accommodations to employees who qualify for them under federal civil rights laws due to disability or sincerely held religious beliefs, or where the vaccine is medically contraindicated or must be delayed based on a medical necessity.

The ETS provides approved methods for establishing proof of vaccination status.

The ETS establishes new requirements for employers to obtain proof of vaccination. Acceptable proof includes physical or electronic copies of:

  • Immunization records from a health care provider/pharmacy or public health, state or tribal immunization information system
  • CDC COVID-19 Vaccination Record Cards
  • Medical records documenting vaccination
  • Any other official documentation confirming 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)
  • State QR codes, so long as accompanied by the actual vaccination information (i.e., date, name, location, type of vaccine)

Employees who are unable to provide proof of vaccination may submit a dated form that attests (1) to their vaccination status (fully vaccinated or partially vaccinated, including, when possible, the name of the vaccine received and approximate dates and locations); (2) that they have lost or are otherwise unable to produce the required proof; (3) to the truth and accuracy of the statements provided; and (4) that they “understand that knowingly providing false information regarding [their] vaccination status on this form may subject [them] to criminal penalties.” Such attestation is only acceptable where an employee has tried, and failed, to procure actual proof of vaccination.

Employees who do not submit an acceptable form of proof of vaccination status must be treated as not fully vaccinated.

Employers who have confirmed, and maintained a record of, employee vaccination status prior to the ETS effective date may be exempt from obtaining the above forms of proof.

Employers must maintain a roster of all employees indicating whether they are fully vaccinated, partially vaccinated, not fully vaccinated due to a medical or religious accommodation, or not fully vaccinated because they have failed to provide sufficient proof.

For unvaccinated workers, the ETS provides options that stop short of a full mandate.

As an alternative to mandatory vaccination, the ETS permits employers to implement policies requiring unvaccinated workers to undergo weekly testing and wear face coverings.

Weekly Testing, Masking and Recordkeeping: As of January 4, 2022, employers must require unvaccinated workers to do the following:

  1. Submit to testing at least once every seven days.
  2. Provide the employer with documentation of test results (which includes the employee’s name and other identifier [e.g., date of birth or Social Security number], testing date, type of test, testing entity and test results).
  3. Wear face coverings in the workplace, with limited exceptions (for example, while in an enclosed private office or while eating/drinking).

Employers must maintain a record of each test result provided by employees for as long as the ETS is in place.

Testing Exemptions: Employees who do not report to a workplace, who work exclusively outdoors or who work remotely full time need not submit to weekly testing. However, workers who occasionally report to the workplace must submit to testing within seven days before coming into the workplace and provide appropriate documentation of negative COVID-19 test results.

Cost of Testing: Because OSHA considers vaccination to be the best way to prevent further spread of COVID-19, at this point, the ETS does not require employers to pay the cost of testing for employees who choose not to be vaccinated. However, employers may still be required to do so under applicable state/local laws.

The ETS does not preempt or preclude more comprehensive vaccination mandates by other jurisdictions or collective bargaining agreements.

The ETS establishes minimum vaccination, vaccination verification, face covering and testing requirements in the workplace, and to that end, it states OSHA’s intent to preempt inconsistent state and local requirements related to the same.

The ETS does not preempt or preclude collective bargaining or state/local requirements imposing additional safety measures designed to address and/or prevent the spread of COVID-19.

Employers should review the ETS and consult counsel for any questions regarding implementing the new rules.

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