The Occupational Safety and Health Administration (OSHA) has released its long-awaited emergency temporary standard requiring vaccination or weekly testing of workers for private employers with 100 or more employees (ETS). President Biden announced the impending mandate on September 9, 2021. OSHA has now released the standard and provided details on the requirements.
Employers have until December 5, 2021 to comply with most provisions of the ETS. If employers choose to allow weekly testing as an alternative to vaccination, that testing must begin by January 4, 2022.
We summarize the key points of the ETS below.
- Written Policy. Employers must have a written policy that either: (a) requires vaccination for all workers; or (b) requires unvaccinated workers to provide proof of weekly testing and wear face coverings in the workplace. (Recall, however, that some employees may be entitled to a reasonable accommodation for a disability or sincerely-held religious belief, as we discussed in a prior post.)
- Remote & Outdoor Workers. The ETS does not apply to employees who work from home, work exclusively outdoors, or do not report to a workplace with other individuals.
- Weekly Testing. An employee who reports to a workplace with other individuals at least once every 7 days must be tested at least once every 7 days. Results must be provided no later than the 7th day following the date on which the last result was received. An employee who reports to a workplace less frequently must be tested within 7 days prior to returning.
- Face Coverings. Unvaccinated employees must wear face coverings when indoors or occupying a vehicle with another person for work purposes. However, face coverings need not be worn: (a) if the employee is alone in a room with floor to ceiling walls and a closed door; (b) for a “limited time” while eating or drinking at the workplace; or (c) for identification purposes for safety and security. There are very limited exceptions if the face covering is “infeasible” or presents a great risk to safety.
- Time Off for Vaccination & Recovery. Employers must provide up to 4 hours of paid time off, including travel time, for employees to get vaccinated. Employers must also provide paid sick leave to recover from any side effects of the vaccine.
- Recordkeeping. Employers must find out the vaccination status of all employees and keep a roster of this information. Employers must collect proof of vaccination, which may include copies of vaccination cards, immunization records from a healthcare provider, or other documents with specific information. Employers must also keep records of all testing. These records should be treated confidentially as medical records.
- Record Requests. If an employee requests information about: (a) their own vaccine documentation or test results; (b) the aggregate number of vaccinated employees at a workplace; or (c) the total number of employees at a workplace, that information must be provided by the end of the next business day. If OSHA asks for the employer’s written policy in accordance with the ETS or the above-referenced numbers, that information must be provided within 4 business hours. If OSHA asks for any other documentation required by the ETS, that information must be provided by the end of the next business day.
- Information to Provide to Employees. Employers must inform employees of the following: (1) the requirements of the ETS; (2) the employer’s written policy; (3) a CDC publication about the vaccine; (4) 29 C.F.R. § 1904.35(b)(1)(iv), which prohibits an employer from firing or discriminating against an employee for reporting a work-related illness or injury; (5) section 11(c) of the OSH Act, which similarly protects employees for making such reports or complaints to OSHA; and (6) 18 U.S.C. § 1001 and section 17(g) of the OSH Act, which provide criminal penalties for knowingly supplying false statements or documentation.
- Mandatory Reporting to OSHA. Employers must report workplace-related COVID fatalities to OSHA within 8 hours of learning of it. Employers must report workplace-related COVID inpatient hospitalizations to OSHA within 24 hours of learning of it.
- Costs of Testing and Face Coverings. The ETS does not require employers to pay for the costs of testing or face coverings.
- Notification of Positive COVID Test. Employers must require all workers – vaccinate or not – to inform them of any positive COVID test. The employee must be removed from the workplace and cannot return until: (a) they receive a negative test; (b) they meet the CDC’s criteria; or (c) a health care provider recommends the return.
OSHA intends that the ETS will preempt states and subdivisions of states (counties, cities, and towns) from adopting and enforcing different standards, in particular those intended to ban or limit the ability of an employer to require vaccination, face coverings, or testing. While legal challenges to the ETS are expected, those will take time. Employers who do not comply with the ETS can face five-figure fines. While a random OSHA inspection may seem unlikely, OSHA can be expected to investigate employee complaints and add COVID compliance to their checklists when visiting workplaces for other reasons.
Though the ETS will apply, in the first instance, to employers with 100 or more employees, OSHA has signaled that it is seeking public comment to determine whether it may be feasible for smaller employers to implement these standards. All employers therefore should continue to monitor OSHA announcements that may expand the current reach of the ETS.
Employers with questions about the ETS or any other employment laws should contact one of Conn Kavanaugh’s experienced employment lawyers.
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