OSHA Releases Long-Awaited COVID-19 Vaccine Mandate

NOTE: On November 6, 2021, a federal appeals court in New Orleans issued a temporary stay, halting implementation of the OSHA Emergency Temporary Standard pending consideration of a challenge to its enforceability. The stay was extended on November 12, 2021. We are following these developments and will update this Alert accordingly.

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The ETS applies broadly to all employers with a total of 100 or more employees and requires most employees to be either fully-vaccinated or submit to weekly testing, starting on January 4, 2022. This Alert provides an overview of some of the obligations the ETS imposes on covered employers.

Vaccine or Test Requirement

Part of a multi-pronged federal effort to increase vaccination rates, the ETS applies to private sector employers with 100 or more employees. Specifically excluded from coverage are employers that are subject to two other, stricter federal vaccine mandates: the September 24, 2022 mandate applicable to federal contractors and the Center for Medicare Services’ mandate applicable to many healthcare employers, which was published at the same time as the OSHA ETS.

Under the ETS, covered employers must implement a written policy either: 1) requiring employees to become fully vaccinated; or 2) allowing employees to choose between becoming fully vaccinated or providing proof of regular COVID-19 testing and wearing face coverings in the workplace. This policy must be implemented by December 5, 2021 and testing of all who are not fully-vaccinated must begin by January 4, 2022.

As part of this mandate, the employer must determine the vaccination status of each employee. Each vaccinated employee must provide the employer with acceptable proof of vaccination. The acceptable forms of proof include copies of COVID-19 vaccination cards, immunization records from a health care provider or pharmacy, or medical records documenting the vaccination. Any employee who does not provide acceptable proof is treated as not fully vaccinated.

If an employer allows employees to choose regular testing, employees who are not fully vaccinated must provide the employer with regular COVID-19 test results. For employees who are in the workplace at least once every seven days, they must provide the employer with a negative test result once every seven days. Under the ETS, the employer is not required to pay for the employee’s COVID-19 tests. Self-administered tests will not be permitted unless observed by the employer or a telehealth proctor, but most other testing methods will be allowed. Further, employees opting for regular testing are also required to wear a face covering while at work.

Some employees may be exempt from the vaccine or test requirement. Employees who work from home or do not come into a workplace around other people are exempt from the rule. Additionally, employees who work exclusively outdoors are not subject to this rule. Further, certain employees may be entitled to a reasonable accommodation from the vaccine requirement if such an accommodation does not present a direct threat to the safety or an undue burden to the employer, including those employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or who are legally entitled to a reasonable accommodation under civil rights laws because they have a disability or sincerely held religious beliefs that conflict with the vaccination requirement.

Employers are Required to Provide Paid Time Off to Get Vaccinated

Employees are entitled to a reasonable amount of time off, including up to 4 hours of paid time to receive their primary vaccination dose or doses. Additionally, employees are also entitled to a reasonable amount of time off and paid sick leave to recover from any side effects experienced following primary vaccination doses. Employers may require that existing accrued paid leave time be used for this purpose. While the full-vaccination or test requirement goes into effect on January 4th, the employer must provide this time off starting December 5, 2021.

Employers are Required to Provide Notice and Maintain Certain Records

By December 5, 2021, employers must provide notice to their employees of the vaccine mandate, including the employer’s policies and procedures to implement the mandate. This notice also must include information about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated by providing the CDC document titled “Key Things to Know About COVID-19 Vaccines,” and it must set forth the anti-retaliation protections under the Occupational Safety and Health Act (“OSH Act”).  Finally, the notice must include the prohibition on providing false statements or documentation under the OSH Act, including the possibility of criminal penalties for doing so.

The ETS requires the employer to collect and maintain certain records related the vaccination status and testing results of its employees. Employers must maintain a record of each employee’s vaccination status and preserve the employee’s proof of vaccination. The rule requires employers to also maintain a roster of each employee’s vaccination status. For employees who are not fully vaccinated and are engaged in weekly COVID-19 testing, the employer must maintain a record of each test result provided by the employee. Employers must comply with this part of the rule by December 5, 2021. 

What is the Expected Impact on Employers?

It is widely reported that the ETS will be challenged in court in the coming weeks. Employers should take steps to prepare to comply with the ETS in the event the ETS withstands these challenges.

In preparing to comply, employers should consider whether they will implement a mandatory vaccination policy or adopt a policy which allows employees to choose between becoming fully vaccinated or regular COVID-19 testing. Employers also should consider beginning to draft their vaccination policy and procedures as well as beginning to determine the vaccination status of each employee and creating a record of each employee’s status. 

If you have any questions about complying with the ETS or would like to discuss how the ETS may impact your business, please contact a Lewis Rice Labor & Employment attorney.

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