Employment Law Bulletin | November 10, 2021

OSHA Releases Guidance on Mandatory Vaccination and Testing Programs

Since President Biden’s announcement in September, we have been waiting for the federal government to provide regulatory guidance for its mandatory vaccination program.  Our wait ended on November 5 when OSHA issued the new Emergency Temporary Standards (ETS). However, shortly after the legislation became effective, lawsuits were filed challenging the law’s constitutionality, and the Fifth Circuit granted an emergency motion to stay enforcement of the ETS pending further action by the Court. Cal-OSHA is planning to release its own revised ETS vaccination requirements, which are expected to be broader in application.

While employers may be inclined to wait for the dust to settle, we recommend a more proactive approach, especially in light of the fast-approaching compliance deadlines of December 5, 2021 and January 4, 2022 (see below). In the next few weeks, businesses with 100 employees or more should become familiar with the ETS requirements to ensure swift compliance and reduce the risk of potential penalties. We’ve provided the highlights of the ETS below, but as with all things COVID, the regulations are complicated and cannot be fully explained in our bulletin. Please reach out to an SMT employment law attorney if you have questions about how these new rules apply to your business.

Who is Covered?  Employers with 100 or more total employees (regardless of location) are covered by the new OSHA Emergency Temporary Standards.

The new requirements do not apply to (1) workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or (2) settings where any employee provides healthcare services or healthcare support services which are covered under separate regulations that require mandatory vaccination but which do not have a testing component.

Do the Rules Apply to All Employees? The requirements apply to all employees who work for a covered employer except for those who do not report to a workplace where coworkers or customers are present, or those who work exclusively from home or outdoors.

What is Required?

• Establish, Implement and Enforce a Written Policy:  Employers can choose between a mandatory vaccination policy or a policy that allows employees to choose between becoming fully vaccinated or, in the alternative, submitting to weekly COVID testing.  The difference between the two options is that the fully vaxed/testing option allows employers to retain unvaccinated employees by having them test regardless of whether the employee has a valid medical or religious exemption while a mandatory vaccination policy would result in the potential termination of any unvaccinated employee who does not have an exemption.  The regulations make clear that employees with valid medical or religious exemptions may be entitled to a reasonable accommodation so long as there is no undue hardship on the employer.

Regardless of which policy is chosen, employers must make sure it is in writing and communicated to employees in a language and method the employees can understand.

• Determine Vaccination Status of All Employees:  Employers must require employees to provide proof of full or partial vaccination.  Employers with prior documented proof of vaccination status do not have to reassess or obtain new proof of vaccination status.

• Acceptable Proof Includes:
  • The record of immunization from a health care provider or pharmacy;
  • A copy of the COVID-19 Vaccination Record Card;
  • A copy of medical records documenting the vaccination;
  • A copy of immunization records from a public health, state, or tribal immunization information system; or
  • A copy of any other official documentation 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).
  • If an employee is unable to provide one of the above forms listed of proof, the employee may submit a signed attestation, but note that the regulations require the attestation to include very specific language. Contact an SMT employment attorney for additional guidance.

The form of proof must be preserved in a confidential medical file and is in addition to the vaccination status roster and testing record requirements listed below. An employee who is partially vaccinated or who fails to submit acceptable proof or a signed statement must be treated as unvaccinated.

• Pay for Testing:  Employers are not required to pay for any costs associated with testing under the OSHA ETS, but California employers who require testing must continue to pay for the costs.  Also, employers who are not covered by these requirements but who require mandatory vaccination must continue to pay for the cost of testing and time spent obtaining the test.

• Provide Paid Time Off for Vaccination and Recovery:  Employers must also provide a reasonable amount of time off for employees to receive each dose of the vaccine.  The regulations state that up to 4 hours of this time, which should include travel time, must be paid.  Additionally, employees must be given a reasonable amount of time and paid sick leave to recover from the side effects of each vaccination dose.

• Testing, Facemasks, and Exclusion Rules:  If an unvaccinated employee reports to work at least once every week, the employee must be tested and provide a negative test result to the employer once at least every seven (7) days.  If an unvaccinated employee does not report to work for more than seven (7) days, then the employee must be tested within seven (7) days prior to returning to the workplace.  Employers may not require testing within 90 days of a positive COVID-19 test or diagnosis.

Employers must ensure that unvaccinated employees wear a face covering when indoors and when occupying a vehicle with another person for work purposes, with few exceptions such as, but not limited to, being in a room alone with a closed door, or during the limited time when the employee is eating or drinking.

The regulations require exclusion from work for employees who do not provide testing results within the required timeframe or who test positive for COVID-19. Employers are not required under this law to provide paid time off when an employee is excluded from the workplace but the employee might be subject to a state or local law requiring pay.

• Recordkeeping:  In addition to a copy of the form of proof of vaccination, employers must keep a record of each employee’s vaccination status and test results, including a roster of each employee’s vaccination status.  The vaccination and testing records must be kept for as long as the standards are in effect, which is currently set for six months. Because this information is considered confidential medical information, it must be kept in a separate file and cannot be disclosed.
• Notice Requirements:  Employers are required to inform employees of the following: (1) the employer’s policies and procedures established to implement these requirements; (2) COVID-19 vaccine efficacy, safety and the benefits of vaccination by providing the document found here “Key Things to Know About COVID-19 Vaccines;” (3) information regarding federal regulations that prohibit discrimination for reporting work-related injuries or illness or for otherwise exercising rights under the ETS; and (4) information regarding criminal penalties associated with supplying a false statement or documentation to OSHA.
• Penalties: Each violation of the OSHA ETS is subject to a $13,653 fine.  OSHA will likely not be actively looking for violations, but employee and customer complaints to OSHA will alert the agency and likely trigger an investigation.

Deadline for Compliance with Program Implementation, Masking and Paid Time Off Requirements:  December 5, 2021.

Deadline for Compliance with Vaccination and Testing Requirements:  Covered employers must ensure that their employees are either fully vaccinated against COVID-19 by January 4, 2022 or, if testing is offered as an alternative, that the employees are testing for COVID-19 at least once a week by January 4, 2022.

If you have 100 employees or more, start preparing for compliance now and contact an SMT employment attorney for guidance on these new regulations.

Kari J. Brown and Betsey M. Cunningham

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Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown