OSHA’s new vaccination requirement for employers with 100 or more employees
Date Posted: 11/05/2021
UPDATE NOVEMBER 17, 2021 — On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order.” OSHA appealed that decision to a multi-circuit panel, who, on Nov. 16, consolidated all petitions from all circuits against the ETS into one case to be heard by the Sixth Circuit Court of Appeals.
Currently, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Once the Sixth Circuit rules, the case will likely head to the Supreme Court. We will update this article with any new developments.
Update November 8, 2021 — Court temporarily halts OSHA Test-or-Vax ETS
It didn’t take long for legal action to be filed against OSHA’s Emergency Temporary Standard (ETS), requiring businesses with 100 or more employees to require employees to be 1) fully vaccinated, or 2) undergo weekly testing and wear a face covering indoors. Several businesses filed a petition in the Fifth Circuit Court of Appeals, arguing OSHA overstepped its Constitutional authority in issuing the rule.
The court agreed to temporarily halt the rule, until both sides can present their arguments. OSHA must respond by the end of day today (11/8), and the petitioners then have until the end of the day tomorrow (11/9) to respond.
The court will likely rule quickly, given the nature of the issue. No matter which way the court rules, the decision is likely to be appealed. To complicate matters, several suits have been filed in other jurisdictions. These cases may ultimately be consolidated with the Fifth Circuit case and heard before a special counsel of judges or the Supreme Court. So, for now, it’s a waiting game that will likely see rulings and appeals for the next couple of weeks.
Practically, it doesn’t change the scheduled enforcement of the rule, so long as all is settled prior to the first compliance date of December 5. Businesses should definitely not assume the rule will be tossed out. There’s a decent chance that after the dust settles it will still stand. If so, it will be effective immediately, likely with the original compliance dates still the same. Businesses should at least plan their implementation strategy, in case the rule does survive the legal challenges. You don’t want to try to put together your policies and plans hurriedly.
Original Article from November 5, 2021 — On November 4, 2021, OSHA issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to require employers with 100 or more employees (company-wide) to ensure workers are vaccinated by January 4, 2022, or, if unvaccinated, undergo weekly testing and wear face coverings while indoors.
The rule covers more workers than anticipated, as OSHA chose to include remote/home-office workers in the determination of coverage under the rule (i.e., the “100+ worker” scope). However, these workers do not have to be included in the vaccination/testing policy.
As expected, the rule requires employers to pay for time off to receive the vaccine or deal with side effects. OSHA says that in most cases, two days of paid leave would be the maximum employers need to provide for adverse reactions.
Employers do not, however, have to pay for tests or time off for testing; nor do they need to pay for face coverings.
All the provisions except for those involving testing are effective December 5, 2021. The testing requirements are effective January 4, 2022. As an ETS, the requirements will be in effect for 6-months, at which time OSHA must decide whether to proceed with a permanent rulemaking process.
Note: The ETS serves as a proposed rule for such a final standard. States with approved OSHA plans must adopt similar requirements.
Many parties have signaled plans to challenge the ETS either through the courts or through legislation. Employers should pay close attention to the status.
OSHA did try to combat some of these preemptively by including language in the ETS that says state and local governments cannot override the ETS by enacting bans or limits on employers’ authority to require vaccination, face covering, or testing.
In addition to creating the vaccination/testing policy, employers must also:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status. Without proof of vaccination, employees are not considered fully vaccinated.
- Ensure each worker who is not fully vaccinated is tested 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). Home testing is allowed, but only if observed by the employer or an authorized telehealth proctor.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a positive diagnosis. Employers must then remove the employee from the workplace, regardless of their vaccination status; employers must not allow them to return to work until they meet required criteria. Employers need not pay employees for this time off.
- Report work-related COVID-19 hospitalizations within 24 hours of learning about them, and report work-related fatalities within 8 hours of learning about them. Note: Employers are required to report a COVID-19 in-patient hospitalization or fatality that occurs at any time after a work-related incident (i.e., exposure). Unlike the general serious injury reporting requirement, reporting is not limited by time of exposure and the time of hospitalization or fatality. In other words, if a worker is exposed to COVID-19 on the job, but isn’t hospitalized until five days after the exposure, the employer would still have to report the hospitalization within 24 hours of learning of it.
- Maintain testing records as “medical records,” but they only must be kept while the ETS in in place.
- Upon request, provide OSHA or employees with the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at that workplace within four hours of a request.
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
The ETS also requires employers to provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS. In addition, information must be provided on:
- Vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”);
- Protections against retaliation and discrimination; and
- Laws that provide for criminal penalties for knowingly supplying false statements or documentation.
What about accommodations?
Employees may request medical or religious accommodations from the vaccination or testing requirements. Employers are urged to follow applicable guidance from the EEOC and legal counsel.
This is one of the most broad-reaching OSHA rules ever published. It is also one of the more controversial. However, unless the courts or Congress step in, employers will need to comply with the applicable requirements. Given the nature of the rule, employers should start sooner rather than later crafting their policies and plans for implementation.
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