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OSHA Releases Vaccination And Testing Mandate For Employers With 100+ Employees

On Thursday, the Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) which requires private employers with 100+ employees to mandate the COVID-19 vaccine for their workforces or require unvaccinated employees to undergo weekly testing and wear masks in the workplace. Employees have until December 5, 2021 to comply with most of the ETS’ requirements; however, employers have until January 4, 2022 to comply with the mandatory testing requirements.

With the release of the ETS, some much-anticipated guidance is now available for employers. We break down some of the hottest topics in the below Question and Answer segment:

1.    How do we calculate whether the company has 100+ employees? Is it company-wide or per location?

The ETS generally applies to private employers that have a total of at least 100 or more employees company-wide. Therefore, all locations will be subject to the mandate if the company employs at least 100 employees in total.

2.    Are there any private employers that are not subject to the ETS? 

  • Workplaces covered by the COVID-19 workplace safety protocols for federal contractors and subcontractors are not subject to the new ETS.
  • Workplaces in settings where employees provide healthcare services (or healthcare support services) when subject to the requirements of the Healthcare ETS are not subject to the new ETS.

3.    Are there any employees who are not subject to the ETS?

  • Employees who do not report to a workplace where others are present are not subject to the ETS.
  • Employees who are working from home are not subject to the ETS.
  • Employees who work exclusively outdoors are not subject to the ETS.

4.    What does the ETS require us to do?

Generally, employers must establish a mandatory COVID-19 vaccination policy or an alternative policy that allows employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing. Unvaccinated employees must also wear face coverings at work, with limited exceptions.

5.    Does this mean that we have to require employees to disclose their vaccination status?

Yes! Employers are now required to keep up with the vaccination status of each employee. This requires employers to: (1) obtain acceptable proof of an employee’s vaccination; (2) maintain records of each employee’s vaccination status; and (3) maintain a roster of each employee’s vaccination status.

Please note that employees’ vaccine information is still considered to be confidential medical information under the Americans with Disabilities Act (“ADA”). Therefore, vaccine information must be kept confidential and maintained separately from regular personnel files.

6.    How does the COVID-19 testing for unvaccinated employees work?

If an employer decides to allow employees to opt out of receiving the COVID-19 vaccine, the employer must ensure that each unvaccinated employee is tested for COVID-19 at least weekly (if the employee is physically in the workplace at least once a week). If an employee is away from the workplace for one week or longer, the employee must undergo COVID-19 testing within seven (7) days before returning to work.

The ETS sets the following standard regarding the types of COVID-19 tests that are acceptable: (1) the test must be authorized by the U.S. Food and Drug Administration (“FDA”) to detect current infection; (2) the test must be administered in accordance with authorized instructions; and (3) the test must not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of acceptable tests include tests with specimens that are processed by a laboratory, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by the employer. Antibody tests are not permissible under the ETS.

Importantly, employers can require employees to pay for their own COVID-19 test each week (unless the employer is otherwise required to pay for testing by some other law or collective bargaining agreement). However, employers should be mindful of whether they are requiring COVID-19 testing in a way that renders the employee’s time to be compensable under the Fair Labor Standards Act (“FLSA”). We are anticipating additional guidance from the Department of Labor (“DOL”) regarding the compensability of testing time.

Finally, employers are required to maintain a record of each test result that is required to be provided by each unvaccinated employee pursuant to the ETS. Similar to vaccine information, COVID-19 test information must be kept confidential.

7.    What if an employee tests positive for COVID-19?

The ETS requires an employee to promptly notify the employer in the event that they test positive for COVID-19, or are otherwise diagnosed with COVID-19. In such case, the employer must immediately remove the employee from the workplace regardless of their vaccination status.

8.    Does the ETS require any paid leave related to COVID-19 Vaccinations?

The ETS does require employers to provide reasonable paid time off related to COVID-19 in two limited scenarios. First, employers are required to provide employees with up to four (4) hours of paid time off to receive each dose of the vaccine during normal working hours. Employees cannot be required to use accrued paid leave time for this purpose. However, if an employee chooses to receive the vaccine outside of normal working hours, the employer is not required to compensate the employee for that time.

Second, employers must also provide reasonable paid sick leave for employees to recover from side effects (if any) following each dose of the vaccine. Employers are permitted to require employees to use their already-existing paid sick leave or PTO benefits, if they have accrued time.

9.    Are there any notice requirements under the ETS?

The ETS specifically requires employers to notify employees about the following, in a language and at a literacy level that the employee understands:

  • The employer must notify employees of the ETS requirements and any policies and procedures that the employer implements to comply with the ETS;
  • The employer must provide information regarding vaccine efficacy, benefits and safety by providing the “Key things to Know about COVID-19 Vaccinates” document from the CDC;
  • The employer must advise employees about OSHA’s protections against discrimination and retaliation; and
  • The employer must notify employees about OSHA’s prohibition against knowingly supplying false statements or documentation, which is associated with significant criminal penalties.

10.    Are there any reporting requirements under the ETS?

The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight (8) hours of learning about them. The ETS also requires employers to report work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

11.    When do these various requirements go into effect?

By December 5, 2021, employers must comply with all of the ETS’ requirements, except for the mandatory testing requirement for employees who are not fully vaccinated. The mandatory testing requirement goes into effect on January 4, 2022.

12.    Are there still exceptions for employees who cannot obtain the COVID-19 vaccine to due a religious conflict or disability?

Yes! Employees who cannot receive the COVID-19 vaccine due to their religion or disability are entitled to a reasonable accommodation; however, unvaccinated employees are still required to undergo weekly COVID-19 testing. Therefore, mandatory weekly testing should generally be sufficient to accommodate an employee who cannot receive the COVID-19 vaccine. However, employers should be aware that an employee could have a religious conflict with being tested for COVID-19 and, accordingly, may be entitled to a reasonable accommodation to be exempted from the testing requirement.

 13.    How does the ETS interact with a governor’s Executive Order or other state law that prohibits mandatory COVID-19 vaccines?

As federal law, the ETS generally preempts an Executive Order or state law that purports to prohibit or ban private employers from mandating the COVID-19 vaccine, testing and/or face coverings. Simply put, a state generally cannot prohibit private employers from implementing the ETS’ requirements. However, employers should be aware that state laws can mandate more strenuous requirements with which employers may be obligated to comply.

Finally, there are 22 states that have their own State OSHA plans, and those states have 30 days to either adopt the federal ETS standard or adopt their own standard that is “at least as effective” as the federal ETS requirements outlined above. Nebraska employers will be required to comply with the federal ETS because Nebraska does not have its own State OSHA plan. However, multi-state employers should be aware of these potentially varying requirements.

While we certainly anticipate numerous legal challenges to the ETS, employers should begin working to implement its requirements, particularly given the relatively short timeline for compliance. McGrath North’s labor and employment team can assist with evaluating your obligations under the ETS, developing a policy and program to comply, surveying the vaccination status of your workforce, working through religious or disability-related accommodation requests, and any other questions that may arise.