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Key Initial Takeaways from OSHA’s Emergency Temporary Standard on COVID-19 Vaccination and Testing

Nov 4, 2021 | John C. Gardner

The Occupational Safety and Health Administration finally released its long-awaited Emergency Temporary Standard (“ETS”) regarding COVID-19 vaccination for larger employers (those with 100 or more employees) on November 4, 2021. Here are some key initial questions and answers from our review of the ETS.

Q: What are the basic requirements?

A: All employers with 100 or more employees will be required to ensure that their employees are fully-vaccinated against COVID-19, or require employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming into the workplace and to wear an approved face covering at all appropriate times when in the workplace. To that end, subject employers must implement and enforce an appropriate written policy regarding mandatory vaccination or vaccination plus testing (and the wearing of face coverings). In addition, employers must determine the vaccination status of their employees in compliance with applicable law, keep a record of that vaccination status and an employee roster containing employee vaccination information, provide paid leave for employees to become fully-vaccinated, provide reasonable paid leave for employees to recover from vaccine side effects, and require prompt notification of any COVID-19 diagnosis or test result.   

Q: How are employees counted?

A: All individuals employed by an employer are counted, without regard to whether they work at one or more locations, out of their home, or elsewhere. In addition, there is no distinction made between part-time employees and full-time employees – each is counted as a single employee for purposes of the one hundred-employee threshold – and a person’s vaccination status is irrelevant to the count. At the same time, true independent contractors (employers should obviously be careful here) are not counted towards the threshold.

Q: What information must/should employers require to determine employee vaccination status?

A: Employers must require employees to provide acceptable proof of vaccination, which includes: 1) a record of immunization from a health care provider or pharmacy; 2) a copy of the employee’s COVID-19 Vaccination Record card; 3) a copy of medical records documenting the vaccination; or 4) a copy of an immunization record from a public health, state or tribal immunization 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 or clinic site that/who administered the vaccine.

If an employee asserts that he/she cannot obtain at least one of the foregoing categories of proof, he/she can alternatively provide proof through a legally adequate attestation. To be adequate, this attestation must provide that the employee has lost or is otherwise unable to provide the types of vaccination proof outlined above, and include:

  • the brand/name (i.e., Moderna, J&J) of the vaccine the employee received;
  • the date(s) on which he/she received the vaccine;
  • the location at which he/she received the vaccination.

The attestation must be in writing, dated, and signed by the employee with a statement that he/she declares “that this statement about my vaccination status is true and accurate” and that he/she “understand[s] that knowingly providing false information regarding [his/her] vaccination status on this form may subject [him/her] to criminal penalties.”  

Q: What does “fully-vaccinated” mean?

A: An employee is fully-vaccinated under the ETS after he/she has completed the relevant dosing regime (i.e., currently one shot for the Johnson & Johnson shot, and two shots for Moderna and Pfizer) and waited the appropriate period of time following the last required shot. Booster shots are not currently considered for purposes of determining whether an employee is fully-vaccinated.

Q: What should employers do with the vaccination information they receive?

A: Employers should treat it as confidential medical information. In addition, employers must maintain the information for at least as long as the ETS remains in place.

Q: Must a subject employer require all of its employees to be vaccinated or tested?

A: No. The ETS provides for certain limited exceptions to the vaccination/testing rules. Specifically, the rule does not apply to employees who work from home 100% of the time, do not report to the workplace when other individuals are present, or exclusively work outdoors. In addition, employers should not apply a mandatory vaccination policy to employees who fall into a medical or religious exemption, as touched upon immediately below.

Q: What should employers do about employees who may have a medical or religious reason/objection against becoming vaccinated?

A: Employers cannot require vaccination of employees: 1) for whom a vaccine is medically contraindicated; 2) for whom medical necessity requires a delay in vaccination; or 3) who are entitled to a reasonable accommodation under applicable law because of a disability or because of sincerely-held religious beliefs, practices or observances. Instead, employers should consider and grant reasonable accommodations to such employees, which could include regular weekly testing for COVID-19 (so long as such testing does not also conflict with religious beliefs and/or is otherwise problematic for medical reasons).  

Q: How do the paid time off provisions work?

A: Subject employers must provide unvaccinated employees who wish to become vaccinated with up to four hours of paid leave (at the employees’ regular wage rates) per dose of the chosen vaccine. Employers cannot require employees to use paid time off to which the employees may have already been entitled under the employer’s policies – rather, employers must grant the employees additional time off for this purpose.

Employers must also provide employees with up to two days of paid time off to deal with any side effects that result from becoming vaccinated. However, employers can require employees to use their existing paid time off bank for this time. That said, if an employee does not have any (or enough) such time available, the employer must grant the employee up to two additional days off for recovery purposes.    

Q: How does the testing option work?

A: For subject employers who do not wish to mandate that all of their employees get vaccinated (i.e., a policy providing that employees will be terminated if not vaccinated), the ETS provides a required testing regime. Pursuant to that regime, employees who are unvaccinated and who report to work at least once a week must obtain a negative COVID-19 test result at least once every seven days in order to continue entering the workplace, and must provide the employer with documentation of that test result. Unvaccinated employees who come into the workplace less frequently must obtain a negative test result within 7 days prior to their return to the workplace, and must provide documentation of the negative test result upon returning. Unvaccinated employees who work exclusively from home, or exclusively outside, are not required to submit to testing.

The testing requirement may be satisfied through a negative NAAT (nucleic acid amplification) test, a rapid-result antigen test, or through other testing options approved by the FDA. However, employees may not rely upon tests that are both self-administered and self-read. Instead, the regulations provide that employees must have an authorized health care provider (which presumably includes pharmacists) or their employers observe/administer the test.

The ETS specifically provides that it does not require employers to pay for the testing. Rather, as far as OSHA is concerned, employers appear to have the option of passing testing costs on to their unvaccinated employees. Nevertheless, employers should make their own determination regarding whether there are any other federal, state, or local laws that could apply to the testing cost itself and/or the time it takes for an employee to be tested, or whether the testing could be the subject of an existing collective bargaining agreement.  

Q: What is the face-covering obligation?

A: Unvaccinated employees must wear approved face coverings when indoors and when occupying a vehicle with others for work purposes. This policy must be enforced at all times, except: 1) when the employee is alone in a room with floor to ceiling walls and a closed door; 2) for a limited time period to allow the employee to drink and/or eat; 3) when the employee is wearing a respirator or approved face mask; or 4) where the employer can show that the use of face coverings is infeasible or creates a greater hazard. 

Q: What information should be included in the written policy required by the ETS?

A: OSHA has created two different templates for employers to consider – one for a mandatory policy, and one for a vaccination plus testing policy. Both can be found here.

Q: What could happen if a subject employer fails to comply?

A: OSHA could impose fines of up to $13,653 for a single violation, and up to $136,532 for a willful violation.

Q: Will the ETS survive its expected court challenges?

A: This is the billion-dollar question, isn’t it? Based upon the immediate public backlash from some groups following the Administration’s announcement of the vaccination rule, there is no doubt that the ETS will be subject to several legal challenges, quite possibly within the next few days/weeks. Whether the ETS will survive those challenges is really an unknown. It certainly seems possible a court would rule that OSHA cannot meet/has not met its burden to demonstrate that workers are “in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them,” especially in light of the fact that high percentages of employers’ workforces are already vaccinated against COVID-19. In addition, the history of previous Emergency Temporary Standards is mixed – approximately half have faced no legal challenge or survived legal challenges, the other half have been partially or entirely enjoined. It may very well be that this particular ETS is subject to an injunction and/or is struck down in-full or in-part in relatively short order. We will all have to stay tuned.      

Q: When does the ETS became effective?

A: Barring any successful court challenges, subject employers will need to be in compliance with the vast majority of the ETS no later than December 5, 2021. Accordingly, by that day, subject employers will need to have determined the vaccination status of their employees, begun providing the required support for employee vaccination, begun requiring that unvaccinated employees wear face coverings, instituted the required written policy, and begun requiring employees to promptly inform them of any COVID-19 diagnosis or positive test result, among other obligations.

By January 4, 2022, employers that chose to provide the testing option to unvaccinated employees, must begin requiring weekly testing in compliance with the specifics of the rule.     

DeWitt will continue to examine the ETS and watch for any relevant court challenges, and will produce additional articles as appropriate. In the meantime, if you need any guidance regarding any of these issues, please feel free to contact John Gardner or any other member of DeWitt’s Employment Relations practice group.