November 4, 2021 OSHA announced its long-awaited COVID-19 emergency temporary standard (ETS), directing employers with 100 or more employees to require their employees to be vaccinated or else submit to weekly testing. The official rule will be effective immediately upon its publication on November 5, 2021, but covered employers will have 30 days (i.e., until December 5, 2021) to comply with most of the requirements, and 60 days (i.e., until January 4, 2022) to comply with the requirement to regularly test employees who aren’t fully vaccinated. States which have their own state safety and health agencies, such as Arizona, California, Oregon, and Washington, have 30 days to either adopt federal OSHA’s rules or issue their own rules which may be more protective of workers. OSHA provides safety enforcement in Idaho and Montana, so OSHA’s ETS will apply immediately upon publication in those states. Here are the key provisions:
Covered employers: The COVID-19 (coronavirus) ETS generally applies to employers with 100 or more employees, but excludes from any ETS compliance obligations workplaces covered by the federal contractor vaccine mandate or the OSHA health care ETS. The 100-employee count is based on total number of employees company-wide at all facilities, including part-time workers and home-based workers. Staffing agency workers who are jointly employed by a client and the agency don’t count toward the total number of workers for the client company but they do count toward the total number of workers for the staffing agency. If the size of your workforce fluctuates, OSHA’s ETS FAQs state that if you have 100 employees on November 5, 2021, you’ll continue to be covered while the ETS is in effect, even if your employment numbers later drop below 100. Similarly, if you have fewer than 100 employees on November 5, 2021, and you later reach 100, you’ll be covered from that time for the duration of the ETS.
Excluded employers: As noted above, workplaces covered by the federal contractor vaccine mandate or the OSHA health care ETS don’t need to comply with OSHA’s new ETS. For information on the vaccine mandate for federal contractors, see our 9/28/2021 Alert and 11/4/2021 newsletter article. In one piece of good news for federal contractors, a White House Fact Sheet announcing OSHA’s new ETS states that the Biden administration is extending the December 8, 2021, compliance date for federal contractor employees to be vaccinated to January 4, 2022, so the two rules are consistent in their time frames. OSHA’s new ETS also excludes workplaces that are health care settings covered by OSHA’s health care ETS (29 CFR 1910.502), which took effect on June 21, 2021. Information and resources for health care employers are available on OSHA’s COVID-19 Healthcare ETS web page. In addition, today the Centers for Medicare and Medicaid Services (CMS) announced its own vaccine mandate for workers at health care facilities that participate in the Medicare and Medicaid programs. The CMS vaccine mandate is scheduled to be published in the November 5, 2021, Federal Register, with a deadline of January 4, 2022, for covered workers to complete their COVID-19 vaccination series.
Covered employees: If you’re a covered employer under OSHA’s new ETS, all of your employees are subject to the new rule, unless: (1) No other people (such as coworkers or customers) are present at the workplace where they report; (2) They’re working from home; or (3) They work exclusively outdoors.
Vaccine mandate: You must establish and enforce a written policy that either requires all covered employees to be fully vaccinated (with accommodations for medical and religious reasons) or that requires all covered employees who aren’t fully vaccinated to be tested weekly and wear face coverings.
Medical and religious accommodations: If you implement a mandatory vaccination policy, OSHA says you may grant exceptions to employees: (1) For whom a vaccine is “medically contraindicated;” (2) Who have a medical necessity that requires a delay in their vaccination; or (3) who are legally entitled to a reasonable accommodation due to a disability under the Americans with Disabilities Act (ADA) or a sincerely held religious belief under Title VII of the Civil Rights Act. OSHA defers to the U.S. Equal Employment Opportunity Commission (EEOC) for guidance on what is a reasonable accommodation under the ADA and Title VII. Keep in mind that this reasonable accommodation analysis isn’t necessarily limited to objections to becoming vaccinated; employees may also have medical or religious objections to testing and wearing face coverings. In each situation, you need to make an individualized assessment to evaluate whether you can reasonably accommodate the employee without causing an undue hardship, including a direct threat to health and safety. Your Vigilant Law Group employment attorney can help you with this analysis.
Proof of vaccination: You must ask employees to provide proof of their vaccination status if you require them to be vaccinated. Acceptable proof generally includes: (1) An immunization record from a health care provider or pharmacy; (2) A copy of the COVID-19 Vaccination Record Card; (3) A copy of medical records documenting the vaccination; (4) A copy of immunization records from a public health, state, or tribal immunization information system; or (5) A copy of any other official document 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). However, if an employee says they were vaccinated but is unable to provide any of these documents, you may require them instead to sign and date an attestation. The attestation must: (1) Describe their vaccination status, including whether they’re fully or partially vaccinated, along with any information to the best of their recollection on the type of vaccine, the date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s); (2) State that they lost and are otherwise unable to provide the required proof of vaccination; and (3) include language that says, “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.”
Company records of vaccination status: You must maintain a roster showing each employee’s vaccination status. You must also “preserve” acceptable proof of vaccination status, which we believe means making and storing a copy of the records provided by employees. If you already verified an employee’s fully vaccinated status and made a record of that status before OSHA’s rule is published on November 5, 2021, you’re allowed to rely on those records, no matter what form they were in.
Record retention: You must maintain confidentiality of records of COVID-19 vaccination status and test results. They are considered employee medical records under OSHA’s regulation at 29 CFR 1910.1020. Fortunately OSHA says they’re not subject to OSHA’s standard record retention period for work-related employee medical records (duration of employment plus 30 years)—you just need to retain the records while OSHA’s COVID-19 ETS remains in effect.
Time off for vaccination and recovery: You must grant a reasonable amount of time off for employees to obtain their primary COVID-19 vaccination doses. At this time, there’s no requirement to grant time off for booster shots, although that could change in the future. You must pay for the time at the employee’s regular rate of pay, up to a maximum of 4 hours. You cannot require employees to use existing paid leave to get the vaccine. You must also provide “reasonable” time off and paid sick leave to recover from any side effects of each dose of the vaccine. OSHA’s FAQs on the ETS state that an employer may cap the amount of paid sick leave to recover from each dose of the vaccine at two days. The FAQs also state that you may require employees to use existing paid sick leave balances (if any) for this purpose. If you only offer paid time off (PTO) to your workers, with no separate balance for sick leave, the FAQs allow you to apply that PTO to the time off. However, if you offer both sick leave and vacation or PTO, you may only apply the paid sick leave. In addition, the FAQs say that if the employee doesn’t have accrued leave available, you cannot require them to borrow against future accrual.
COVID-19 testing: Employees who aren’t fully vaccinated and who report at least once every 7 days to a workplace where other people are present must be tested for COVID-19 at least once every 7 days and must give you updated test results no later than 7 days after they last provided a test result. If an employee doesn’t report to such a workplace during a period of 7 or more days, they must be tested for COVID-19 within 7 days before returning and must provide documentation of that result to you upon returning to that workplace. Any employee who isn’t fully vaccinated (and isn’t approved for a medical or religious accommodation) must be excluded from the workplace until they provide a test result. You must retain records of each test result. Employees can’t both self-administer and self-report the COVID-19 test results unless the test is observed by their employer or an “an authorized telehealth proctor.” The testing requirement takes effect on January 4, 2022, but employees who have completed their entire vaccination doses by that date don’t have to be tested, even if they haven’t yet completed the two-week waiting period to be considered fully vaccinated.
Temporary pause to COVID-19 testing after contracting the virus: If an employee tests positive for COVID-19 or is diagnosed with COVID-19 by a licensed health care provider, you shouldn’t require any testing for a period of 90 days after the date of the positive test or diagnosis.
Pay for testing: OSHA’s rule doesn’t require employers to pay the cost of COVID-19 tests, but state law, collective bargaining agreements, employee contracts, or company policies may require you to do so. California state law requires employers to pay the cost of any expenses incurred on behalf of the employer, and Oregon state law requires employers to pay the cost of any employer-required medical exams. We believe employers in these states would be required to pay for the cost of any COVID-19 testing conducted under OSHA’s ETS.
Employee notification of having COVID-19: You must require all employees (regardless of vaccination status) to promptly notify you if they test positive for COVID-19 or are diagnosed with COVID-19 by a licensed health care provider. You must then immediately remove them from the workplace. OSHA’s ETS doesn’t require you to pay for their time off, although state or local laws, collective bargaining agreements, employee contracts, or company policies may require you to do so.
Return to work after positive COVID-19 test or diagnosis: There are three available paths for the employee to return to work after contracting the virus. The first is that if the employee’s positive test was obtained through a COVID-19 antigen test (rapid test), the employee may seek a more precise confirmation test in the form of a nucleic acid amplification test (NAAT); if the result is negative, the employee may return to work. A second option is for a licensed health care provider to recommend the employee’s return to work. A third option is for the employee to meet the Centers for Disease Control (CDC)’s return-to-work criteria in its Isolation Guidance as incorporated by reference in OSHA’s regulations at 29 CFR 1910.509, which is fixed in time as of February 18, 2021. The CDC’s Isolation Guidance is updated regularly; fortunately the advice on isolation hasn’t changed since then. If an employee tests positive but never develops symptoms, they may return to work 10 days after they submitted the sample that resulted in a positive test. If they have symptoms, most people may return to work when: (1) 10 days have passed since the symptoms first appeared; (2) they’ve gone at least 24 hours with no fever without the use of fever-reducing medications; and (3) other symptoms of COVID-19 are improving (except loss of taste and smell, which may take weeks or months to improve). However, people who were severely ill with COVID-19 may need to wait longer to return (up to 20 days after symptoms first occurred). People with weakened immune systems should talk with their health care provider, who may recommend testing before they return.
Face covering defined: Face coverings must completely cover the nose and mouth. In general, they must be made of two or more layers of tightly woven, breathable fabric, fit snugly, and not have exhalation valves or other openings. If gaiters are worn, they need to be doubled over to make two layers. The face covering may also be clear, if needed to facilitate communication with people who need to see the speaker’s mouth or facial expression to understand them. A facemask means a surgical, medical procedure, dental, or isolation mask that is approved by the FDA.
Requirement to wear face coverings: You must ensure that employees who aren’t fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person for work purposes, with limited exceptions: (1) Being alone in a room with floor-to-ceiling walls and a closed door; (2) For a limited time while eating or drinking; (3) Showing their face for identification purposes to comply with security requirements; (4) Wearing a respirator or facemask; or (5) When the use of face coverings is infeasible or causes a greater hazard to the employee. You must ensure that any required face coverings completely cover the employee’s nose and mouth and are replaced when wet, soiled, or damaged. Employees have the right to voluntarily wear a face covering or facemask unless it would create a hazard of serious injury or death. You must also allow the employee to wear a respirator instead of a face covering, whether required or not. If employees voluntarily wear a respirator or you voluntarily provide them for protection from COVID-19, you must comply with OSHA’s regulation at 29 CFR 1910.504 (Mini Respiratory Protection Program).
Information to give to employees: You must provide specific information to employees, in a language and at a literacy level they understand. You must inform them of the requirements of the ETS as well as any company policies and procedures to implement the ETS. OSHA is offering two policy templates to get you started. The Mandatory Vaccination Sample is for covered employers who intend to require vaccines for all workers, while the Vaccination or Testing and Face Covering Sample is for employers who intend to allow workers who don’t want to be vaccinated to be regularly tested and wear face coverings instead. If you’ve already developed a policy, you must update it to incorporate any of the ETS elements that are missing. You must also provide a CDC document to your employees, “Key Things to Know About COVID-19 Vaccines.” In addition, you must notify employees that they are protected from discrimination or retaliation for reporting a work-related injury or illness, exercising rights under the ETS, taking actions that are required by the ETS; filing an occupational safety or health complaint, reporting work-related injuries or illnesses, and exercising any rights under the Occupational Safety and Health Act. You must also notify them that federal law (18 U.S.C. 1001 and section 17(g) of the Occupational Safety and Health Act) provide for criminal penalties associated with knowingly supplying false statements or documentation.
Reporting COVID-19 fatalities and hospitalizations to OSHA: In a slight adjustment to the normal OSHA reporting procedures in 29 CFR 1904.39, you must notify OSHA of a work-related COVID-19 fatality within 8 hours of learning of the fatality and you must notify OSHA of each work-related COVID-19 in-patient hospitalization within 24 hours of learning of the hospitalization. Also, the ETS says not to follow the normal exceptions to filing a report when a fatality occurs more than 30 days after a work-related incident or an in-patient hospitalization occurs more than 24 hours after a work-related incident. For background information on the usual reporting requirements, see our Legal Guide, Catastrophe/Fatality Notification Procedure.
Availability of records: Employees and anyone to whom they give written consent have the right to examine and copy their individual COVID-19 vaccination documentation and test results. Employees and their representatives also have the right to request the total number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. You must make the records available by the end of the next business day after the request. If OSHA comes knocking, you have 4 business hours to provide your written policy and the total vaccination numbers, and you have until the end of the next business day to provide all other records required by the ETS.
Tips: For more resources, including FAQs, see OSHA’s web page, COVID-19 Vaccination and Testing ETS. We’ll keep members informed on the status of state adoption of OSHA’s ETS, and we’ll also monitor legal challenges to the ETS. Contact your Vigilant Law Group employment attorney with questions about the vaccine mandate, including policy development and medical or religious accommodations. Contact your Vigilant safety professional with questions about respiratory protection or reporting COVID-19 deaths and hospitalizations.