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COVID-19 Updates

OSHA Issues COVID-19 Vaccine Mandate

November 09, 2021

The DOL’s Occupational Safety and Health Administration (OSHA), released its long-anticipated emergency temporary standard (ETS) requiring employers with a total of 100 or more employees to institute written mandatory vaccination policies for their employees. The ETS is effective November 5, 2021. The ETS pre-empts state law and regulation concerning COVID-19 vaccinations, testing and face coverings, unless the state has a plan that has been approved by the federal government.

Because this mandate primarily involves employment and labor law, employers should consult with legal counsel regarding employer compliance with the new requirements.

All employees (temporary, seasonal, part-time, full-time, remote workers) working in the US are counted for purposes of determining if an employer is subject to the ETS. Workers employed by a temporary staffing agency are counted by the agency, not the host employer. Employer size is determined on November 5, 2021. Once an employer is subject to the requirement due to size, they remain subject for the entire ETS period.

Covered employers must establish, implement and enforce the written vaccination policy, although they can provide their employees with the choice of either becoming fully vaccinated or providing proof of regular COVID-19 testing and wearing a face covering. Note that employers must provide reasonable accommodations for employees who cannot be vaccinated due to the vaccine being medically contraindicated or a disability, or when doing so conflicts with a sincerely held religious belief, practice or observance. Neither the vaccine mandate nor the testing applies to employees who do not report to a worksite with customers or other coworkers, or to employees who work exclusively outdoors.

In addition to the policy, employers subject to the ETS must provide all workers up to four hours of paid time, including travel time, for each of their primary vaccination doses received during normal work hours at the employee’s regular rate of pay. Employers must provide reasonable time and paid sick leave to each employee for recovery from side effects following any primary vaccination dose. Two days of paid sick leave is considered reasonable.

Employers must determine each employee’s vaccination status and maintain records of that status. Examples of acceptable proof of vaccination status include COVID-19 vaccination record cards, copies of records of immunization provided by a healthcare provider, and a signed attestation from the employee that they are vaccinated (if they cannot provide one of the other forms of proof). These vaccination records are confidential medical records, and the employer must maintain them accordingly.

Employees who are not fully vaccinated must be tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer). The ETS does not require employers to pay for testing, although other laws, regulations, collective bargaining agreements or other collectively negotiated agreements may require it. Employers are also not required to pay for face coverings.

If an employee tests positive for COVID-19 or receives a COVID-19 diagnosis, they must provide prompt notice to their employer. Employers must then remove the employee from the workplace, regardless of vaccination status. Employers must not allow them to return to work until they meet required criteria, which includes a negative COVID-19 test, meeting the CDC’s return to work criteria or a recommendation from a licensed healthcare provider.

Employers must comply with most requirements within 30 days of the effective date and with testing requirements within 60 days of the effective date. This means that the written policy, leave and face covering requirements must be in place by December 5, 2021. Employees must either be fully vaccinated or subjected to regular testing by January 4, 2022. Note that there is a 30-day comment period that began on the effective date as well. Comments submitted in that time will be considered by the agency and may lead to changes in the ETS.

Note that this ETS does not apply to government contractors, which are subject to their own mandates. The Biden administration issued an executive order that requires government contracts to include language instituting vaccine mandates for government contractors. This mandate applies to all employees working on or in connection with a government contract and requires them to be vaccinated. Although employers must provide reasonable accommodations, government contract employees do not have the option to be tested weekly instead of getting vaccinated. The original due date for vaccinations under this ETS was December 8, 2021, but that has been extended to January 4, 2022, to be in line with the other mandates. Information on this mandate can be found here.

In addition to the ETS, CMS issued an interim final rule (effective starting November 5, 2021) that applies to certain Medicare and Medicaid-certified providers and suppliers, which includes hospitals, home health agencies, and long-term care facilities. The rule requires staff of those providers and suppliers have their second dose of the vaccination by January 4, 2022 (although they are not required to complete the two week waiting period). The rule does not provide a weekly testing option. The rule can be found here.

Note: On November 6, 2021, the US Court of Appeals for the Fifth Circuit issued a stay on the enforcement of the ETS, citing “grave statutory and constitutional issues with the mandate.” This stay is the result of action brought by private actors and several states, including Texas, Louisiana and South Carolina, and is effective until the court takes further action. The federal government must file a response to the petitioners’ request for a permanent injunction by the end of the day on November 8, 2021. The order can be found here.

ETS (unpublished version) »
Fact Sheet »
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