OSHA Issues Vaccine Mandate Guidance for Employers

Private Sector must comply with most aspects by December 5, 2021.

Last week, the Occupational Safety and Health Administration (OSHA) unveiled its Emergency Temporary Standard (ETS) to protect employees of large companies from COVID-19. This ETS, which is expected to apply to more than 80 million workers, will require employer action by December 5, 2021…however, the testing and vaccination requirements will not take effect until January 4, 2022.

Below is a brief summary of the key highlights/points:

Scope The guidance applies to employers with 100 or more employees* except for those who (1) do not report to a workplace where other individuals – such as coworkers or customers – are present (2) work from home, (3) work exclusively outdoors, (4) are covered under the federal contractor rule, or (5) are covered under the healthcare services rule.  

Vax-or-Test Timeline Employees must be fully vaccinated for COVID-19 by January 4, 2022, or be subject to weekly testing. This guidance will remain in effect until withdrawn or superseded by a permanent standard, which must be issued no later than six months after publication of the initial ETS.

Vaccination Requirements Employers must require each vaccinated employee to provide acceptable proof of vaccination status. Acceptable proof of vaccination generally includes: (1) a copy of the COVID-19 vaccination card, (2) a copy of immunization/medical records documenting the vaccination, or (3) employee attestation – but only if unable to produce other proof.  

Testing Each unvaccinated employee must be tested at least every seven days and provide documentation of the most recent test results to the employer.** A permissible test is one that has been approved by the Food and Drug Administration (FDA) and is administered in accordance with the authorized instructions. Over-the-counter self-tests are not permissible unless they are observed or proctored in accordance with the ETS.

The ETS does not require employers to pay for costs associated with COVID-19 testing.

Positive COVID-19 Test Regardless of vaccination status, an employee who tests positive for, or is diagnosed with, COVID-19 must promptly notify their employer. Said employee must be immediately removed from the workplace and may not return until he/she meets the return to work criteria. The ETS does not require employers to provide paid time off to any personnel removed from the workplace due to a positive COVID-19 test or diagnosis.

Paid Time Off Beginning December 5, 2021, large employers must provide paid time off for staff to receive the vaccine and recover from any side effects caused by the vaccine. Specifically, the ETS requires all covered entities to support vaccination by providing employees with a “reasonable” amount time off — including up to four hours at the regular rate of pay — to receive each vaccination dose. They must also provide “reasonable” time and paid sick leave to employees recovering from vaccine side effects.

Interaction with State Laws/Plans The ETS is intended to preempt any State or local requirements that ban or limit an employer from requiring vaccination or testing. In the twenty-two (22) states that maintain their own plans, the state OSHA will be responsible for either adopting the federal standard as written or modifying it to impose stricter requirements.

Penalties It appears that the civil penalty for violation of the ETS may be as high as $13,653 for each affected employee. Citations can carry monetary penalties up to $136,532 in the case of willful or repeat violations.

On November 6, 2021, the US Court of Appeals for the Fifth Circuit temporarily blocked OSHA’s vaccine mandate. The court wrote that the pending lawsuit raised “cause to believe that there are grave statutory and constitutional issues” surrounding the ETS. Thus, the guidance is stayed until further notice…temporarily halting its implementation and enforcement. Although the future of the ETS remains uncertain as the result of current legal challenges, employers should begin laying the groundwork for compliance while keeping a close eye on the ongoing litigation.  

*For a single corporate entity with multiple locations, all U.S. employees are counted for purposes of the 100-employee threshold. Part-time employees and those not covered by the ETS (i.e. remote workers) count toward the company total; independent contractors do not. Once at or above the threshold, an employer will remain covered even if it drops below 100 employees.

**An unvaccinated employee who typically works remotely – or has been away from the workplace for a week or longer – must be tested within seven days before returning to work.

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