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OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard

Friday, November 5, 2021
OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard
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The long-awaited OSHA standard mandating COVID-19 vaccination and testing for employers with 100 or more employees was released November 4th and becomes effective on November 5th when it will be published in the federal register. The name of the standard is as long as this article intended to explain it. The 490-page standard and preamble is in the link below.

https://public-inspection.federalregister.gov/2021-23643.pdf

This article summarizes the pertinent elements of the standard, while providing insights and advice to employers employers that are impacted. The standard applies to employers with 100 or more employees. Approximately 80 million Americans work for employers of this size. I’ve included a link to FAQ’s published by OSHA to help answer questions not addressed in this article.

https://www.osha.gov/coronavirus/ets2/faqs

Exceptions:

First, it’s important to identify situations in which this standard does not apply. These include:

  • Employers with less than 100 employees. There are 78 million employees who work for these smaller employers that are exempt from the vaccine mandate

For employers with 100 or more employees not covered by the exceptions above, the requirements of the vaccine standard do not apply to the following employees:

  • Employees who do not report to a workplace where other individuals such as coworkers or customers are present. This would apply to a unique situation such as a remote office where there are no employees, customers or others present.
  • Employees who work remotely from home. However, the standard applies at any time such employees report to a location where others are present.
  • Employees who work exclusively outdoors. The OSHA FAQ adequately defines this exception. Generally speaking, such employees do not occupy vehicles with others or work inside of buildings at any time. The only exception is when such employees use restroom facilities or spend brief periods of time in an administrative office.

For purposes of this standard, employees only include those directly employed by the employer. This is inconsistent with other OSHA policies that include directly supervised temporary workers as employees of the host employer. I believe the agency changed its policy to capture a greater number of temp employees who would have been excluded when working for smaller host employers.

Written Policy:

Employers subject to this standard must develop, implement, and enforce a written, mandatory COVID-19 vaccine policy or develop, implement, and enforce a written policy allowing an employee to choose between vaccination for COVID-19, or provide proof of regular testing for COVID-19. Essentially, this gives the employer a choice of mandating a vaccine with no other option or allowing the employer to adopt a policy providing the employee with a choice of vaccine or weekly COVID-19 testing. Simply, OSHA will allow employers to adopt a policy requiring mandatory vaccines, with exceptions only for legally protected religious and disability related reasons.

Employers that select either option MUST provide employees who claim religious or disability exemptions with a reasonable accommodation. Specifics concerning accommodation for these exemptions is defined by the EEOC and can be found at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

OSHA has provided two sample templates to assist employers in developing their own written policy. Failure to develop either of the policies is a violation of the standard. The templates (named “Mandatory Vaccination Sample” and “Vaccination or Testing and Face Covering Sample”) are available at this link under the “Policy Templates” header in the “Implementation” column. 

Determination of Vaccination Status:

Employers subject to the standard must determine affected employees vaccination status. The standard provides details on the type of documentation considered acceptable. If the employee is unable to produce the accepted documentation, the standard allows the employee to provide a signed attestation. Details regarding information required in the attestation is found in the standard.

Records of vaccination status are considered medical records and must be protected accordingly. Employers are required to maintain a roster detailing the vaccination status of employees. These records must be retained as long as this emergency standard remains in effect (at least 6 months).

Employees unable to provide proof of vaccination, including a signed attestation, must be treated as unvaccinated for purposes of this standard.

The OSHA standard is silent on COVID-19 booster vaccines, so employers don’t need to worry about updating the vaccination status of employees as the standard is currently written.

Employer Support for Employee Vaccination:

OSHA requires employers to allow employees time to get vaccinated, including paying employees up to four hours of regular pay to get the vaccine. Employees may voluntarily get the vaccine on their own time, in which case the employer isn’t required to pay the employee.

Additionally, employers are required to provide paid time off to employees who need time to recover from the side effects of the COVID-19 vaccine. Employers may require employees to take available sick time or personal time off to cover such absences. If sick time is unavailable, OSHA has clarified an employer is not responsible to pay an employee for more than two days to recover from side effects from each dose of a two-shot COVID-19 vaccine.

COVID-19 Testing for Unvaccinated Employees:

The standard requires all unvaccinated employees test for COVID-19 weekly. The standard details exactly the type of tests allowed and how those tests must be administered.

Employees who report to workplaces where others are present once every 7 days must get a COVID-19 test once every 7 days (calendar days).

Employees who do not report to work during a period of 7 or more days must be tested for COVID-19 within 7 days prior to returning to the workplace and provide documentation to the employer upon return to the workplace.

If the unvaccinated employee tests positive for COVID-19, the employer cannot continue to require the unvaccinated employee be tested for COVID-19 for a period of 90 days following the first positive test because testing within that period can produce false positives long after the employee is symptomatic and capable of spreading the virus.

In a significant departure from previous policy, OSHA is NOT requiring employers pay for COVID-19 testing. Every other standard where medical testing or evaluation is required, OSHA requires the employer pay for the test or exam. Employers may opt to pay for these tests, but they don’t have to. Presumably, this is being done to apply maximum pressure on employees to get the vaccine as it could be a financial burden on some employees to pay for weekly testing.

Notification of Positive COVID-19 Test & Removal:

Regardless of vaccination status, OSHA requires every employer to require every employee to report the occurrence of a positive COVID-19 test. Upon notice of a positive test, the employer must immediately remove the employee from the workplace.

The employee may return to work following a negative COVID-19 test, or the employee follows CDC’s “isolation guidance”, or receives a recommendation to return to work by a licensed health care professional. A link to CDC’s isolation guidance is below:

https://www.cdc.gov/coronavirus/2019-ncov/your-health/quarantine-isolation.html

OSHA does not require employers to pay employees for time away from work while they recuperate from COVID-19, including cases of COVID-19 that may be work related. The standard indicates employees may be entitle to compensation through “other laws” and/or through collective bargaining agreements. “Other laws” likely include state workers’ compensation laws that may compensate employees for work-related cases of COVID-19.

Interestingly, employers are under no obligation to pay for testing, or time off, for vaccinated employees who test positive for COVID-19. Other standards, including lead, cadmium, and others, specifically require employees be compensated following medical removal from the workplace. This penalizes vaccinated employees who contract a breakthrough COVID-19 case in the workplace.

Face Coverings:

OSHA requires unvaccinated employees to wear face coverings when indoors or when occupying a vehicle with others for a work-related purpose. Obviously, this requirement does not apply for employees who work at home. An exception for face coverings is allowed if the unvaccinated employee works in a room with walls that run from floor to ceiling with a door kept closed at all times within a workplace where others are present.

Face coverings are not required when employees are wearing a respirator or facemask and when the employer is able to demonstrate wearing a face covering in the workplace creates a greater hazard. Situations where an employee is working in an area with an elevated temperature may be one possible example.

OSHA also requires employers to allow employees who wish to wear a respirator instead of a face covering, whether vaccinated or not, for protection against COVID-19.

Contrary to other standards where employers are required to pay for personal protective equipment, OSHA does not require employers to pay for employee’s face coverings or respirators used for protection against COVID-19. Once again, this may be to encourage employees to get the vaccine instead of having to pay for face coverings or respirators.

Training:

It’s no surprise OSHA’s vaccine standard requires training of employees, but this standard specifically requires the training be provided “in a language and at a literacy level the employee understands.” This is the first, to my knowledge, this has been stated in an OSHA standard. Employers will be required to simplify the OSHA standard itself as employers are required to explain the OSHA standard to all employees. It’s challenging to take regulatory text such as this standard and prepare it in a way that can be understood by all employees.

Employers must also provide information and training regarding the employer’s written COVID-19 program.

Additionally, employers must train employees in vaccine efficacy, safety, and the benefits of being vaccinated. They refer to the CDC document, “Key Things to Know About COVID-19 Vaccines,” link below.

 

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html?s_cid=10493:covid%20vaccine:sem.ga:p:RG:GM:gen:PTN:FY21

Employers must also inform and train employees of their protection from retaliation for reporting work related injuries and illnesses as well as criminal penalties employees may be subject to for providing false statements to the agency.

This is the first time I’ve seen this specific language in the training section of an OSHA standard, with the exception of the OSHA recordkeeping standard. Unfortunately, OSHA provides no training resource for employers. Employers should maintain documentation of training provided, along with materials used, to prove training was conducted.

Absent documentation, OSHA will verify delivery of training by speaking with employees and asking direct questions. Documentation will be critical in overcoming an employee’s inability to remember exactly what was included in training. Comprehension testing or quizzes are another way to demonstrate employees understood the training delivered, but this may fall short for employees who are unable to read and write.

Reporting COVID-19 Fatalities and Hospitalizations to OSHA:

This requirement is nothing new, as OSHA requires all employers to report the occurrence of a work-related death within eight hours of the employers’ knowledge and work-related hospitalizations within 24 hours of the employers’ knowledge to the agency.

Employers are only obligated to report the occurrence of work-related COVID deaths and hospitalizations. With COVID-19, it’s extremely difficult to know where the case was contracted, so unless employers have solid causation between an employee’s COVID-19 illness or fatality and a workplace exposure, this will have little impact on employers.

While not addressed in this standard, work-related cases of COVID-19 must be recorded on the employer’s OSHA 300 log. In April of 2021, OSHA originally instructed employers to record illnesses associated with adverse reactions to mandated vaccines on the OSHA log, but just one month later in May, the agency reversed this requirement. Presumably, the change in policy was made to encourage employers to mandate the COVID-19 vaccine by eliminating fear adverse reactions would be considered recordable, and an indication of a flawed safety program.

Availability of Records:

OSHA will be very interested to audit employers subject to this standard to determine the number and percentage of employees vaccinated under this government mandate.

The employer must furnish records concerning the vaccination status or testing results for any employee to a requesting or representative of the employee by the end of the next business day following the business day of request.

The employer must also furnish the aggregate number of employees vaccinated along with the total number of employees at the workplace within the same timeframes above.

The written COVID-19 vaccine program and aggregate number of employees vaccinated and total employees at the workplace must be provided to OSHA within four hours of request. These are tight timeframes and virtually eliminate an employer’s ability to create such documentation and programs if they didn’t already exist.

Effective Dates:

Employers must implement all aspects of the COVID vaccine standard, except testing, 30 days after the standard is published. At the time of this writing, that date is expected to be December 5th. The testing requirements of the standard must be implemented by January 4th, 2022.

The emergency temporary standard is in effect for six months following date of publication. It may be extended, or replaced, by a permanent standard.

Summary:

The COVID-19 vaccine and testing standard is complex, far-reaching, and controversial. Various groups have, or will, file suit in various federal courts questioning the constitutionality of the new law. I believe this will be on a fast track to the Supreme Court. The courts have acknowledged an employer’s right to mandate a vaccine, but this is the first time the government has mandated private employers require vaccination of their employees.

Additionally, in the purpose section of the standard, OSHA states this document is intended to “preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees”. This sets the stage for a legal battle between the states and the federal government.

Employers are already having a difficult time filling job vacancies and with some surveys estimating 28% of employees will quit if mandated to get a vaccine, this could have a negative effect on some employers.

Interestingly, smaller employers not subject to the standard may benefit by finding employees who left their larger employer because of the mandate.

Horton’s team of safety consultants can help employers develop and implement the programs needed to comply with this new standard, but the clock is ticking. 30 days isn’t much time to develop programs and complete the required training. Ironically, the agency is allowing 60 days to implement testing for employees who refuse the vaccine, which may be the easiest aspect of the standard. Testing is readily available, and employers can either cover the cost or require employees pay for the test.

Please contact Horton Safety Consultants if you have questions or need assistance developing and implementing your COVID-19 vaccine compliance program.

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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