OSHA vaccine mandate has a few surprises

On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) pulled back the curtain on its Emergency Temporary Standard (ETS) about two months after President Biden announced that a vaccine-or-test requirement for private employers with 100 or more employees was imminent.

The 490-page document reads as a fully documented scientific justification and legal defense of the ETS, but contained few, if any, surprises. Briefly, employers with 100 or more employees must develop and enforce written safety policies that require:

1. Mandatory vaccination (with appropriate ADA and religious accommodation), full stop. OSHA strongly encourages employers to select this option; or
2. Mandatory vaccination-or-test/mask.

Employers must have policies and procedures in place by December 5, 2021. Employees must be fully vaccinated or begin weekly testing effective January 4, 2022. Unvaccinated employees failing to provide weekly negative test results cannot be allowed at the workplace.

First Things First – Will This ETS Survive Legal Challenges Against It?

Because this is an emergency temporary standard, the rule goes into effect immediately. However, a group of 24 Republican attorneys general warned they would go to court to fight what they call an illegal mandate, and indeed Florida and Alabama have already filed suits. The fact is, OSHA has rarely issued emergency temporary standards— of the nine they have released since 1971, six were challenged, and only one survived unscathed. The crux of the argument is that OSHA’s power to release emergency rules is limited to workplace hazards, and that there is no “grave danger” as the country seemingly moves toward herd immunity.

Federal OSHA regulates workplaces in 29 states, while the rest have their own state-run version. Several Republican states have gone on record indicating they will not adopt this new standard. However, it seems likely that Oregon and Washington will be early adopters—Oregon’s rulemaking committee is scheduled to meet on November 9 to discuss how, if at all, Oregon’s rule will differ from the federal rule.

Because State plans are likely to take effect before any legal challenges can be heard or resolved at the federal level, employers in the Pacific Northwest are advised to start preparing their compliance plans right away. Under the new rule, employers failing to comply with the ETS could be fined up to $13,653 per violation.

What Employers Are Subject to the ETS?

Private sector employees (and public employees under Oregon and Washington’s State Plans) with 100 or more employees. Employers with unionized workplaces with 100 or more employees must, like all others, follow the minimum requirements established in the ETS.

• Exception: Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
• Exception: Workplaces covered under the Healthcare ETS (29 CFR 1910.502)

• Count At the Corporate Level.  An employer should count all employees (F/T and P/T) across all its U.S. workplaces (including people currently working from home) at the corporate level. The count is not taken by individual location.
• Do Aggregation Rules Apply?  The ETS does not address aggregation rules for businesses with common ownership. Based on several references to counting at the “firm” or “corporate” level, it does not appear OSHA intends for owners of disparate businesses to aggregate their employee counts.
• Temporary Workers and Independent Contractors do not count toward the host employer’s employee count. However, a host employer may require staffing agencies and contractors to comply with the employer’s vaccination policy. Staffing agencies should count all employees on their payroll.
• Employers with Fluctuating Staff with 100 employees on November 5, 2021 are subject to the ETS for the duration of the rule, even if dropping below 100 employees. Employers with fewer than 100 lives on November 5, 2021 that reach 100 lives at any time while the ETS is effective shall be subject to the ETS for the duration of the rule.

What Employees Are Subject to Vaccinate-or-Test Mandate?

All employees physically present at an indoor workplace or occupying a vehicle with another person for work purposes.

• Exception: Workers who perform duties “exclusively outdoors” – an employee who works outdoors some days and indoors on others would not be exempt, nor would an employee who routinely occupies vehicles with other employees as part of work duties
• Exception: Individuals working from home or in isolation from other co-workers or the public

Note: Employees excepted from the mandate still count toward an employer’s 100-life threshold.

Who is “Fully Vaccinated?”

A person is fully vaccinated two weeks after completing the full course of treatment. For the one-dose Johnson & Johnson vaccine, a person is fully vaccinated 14 days after the inoculation. For the Pfizer-BioNTech and Moderna two-dose regimen, a person is fully vaccinated 14 days after the second shot (which must be 21 days from the first shot).

• A person with only one of the two-shot regimens, or still in the 14-day period from the last shot, is not fully vaccinated and would be subject to the testing requirement (if the employer allows testing in lieu of vaccination)
• A person who has had COVID-19 and claims natural immunity is not considered vaccinated and is therefore subject to the weekly testing requirement (if the employer allows testing in lieu of vaccination).
• Booster shots are not considered to be part of the definition of fully vaccinated and therefore not required by the ETS.

Indoor Masking Required Effective December 5, 2021

While Oregon and Washington already have indoor mask mandates in place, the ETS directs employers to make it a policy that employees who are not fully vaccinated begin wearing masks at all times while indoors at work unless: 1) they are alone in a room with floor-to-ceiling walls with the door closed; 2) for a limited time while eating or drinking; or 3) if an employer can prove that wearing face masks are infeasible.

How Does Vaccinate-or-Test Work?

Employers choosing Vaccinate-or-Test must require all individuals who are not fully vaccinated (including those granted an ADA or religious accommodation) to submit a negative result from an FDA-approved COVID-19 test on a weekly basis. Employees refusing weekly testing must not be allowed to be physically present at the workplace.

• FDA-approved tests that are both self-administered and self-read by the employee do not satisfy the testing requirement unless observed by the employer or an authorized telehealth proctor.
• Individuals who rarely visit the workplace but may come in once or twice per month must be vaccinated or supply the employer with a negative test result within 7 days prior to returning to the workplace.
• Employees who have tested COVID-19 positive cannot be required to test for 90 days from the date of the positive test but must wear face coverings at the workplace at all times, even if fully vaccinated.

Paid Time Off Effective December 5, 2021

Employers must provide employees with paid time off (up to 4 hours per shot) in order to get the necessary vaccination. Employees who get vaccinated in their off-hours are not entitled to paid time off. For the purposes of receiving the vaccination, the paid time off cannot be deducted from other PTO or sick leave banks.

Employers must also provide paid time off (OSHA suggests two days would be considered “reasonable”) for people to recover from the side effects of the vaccinations.

• If the employee has accrued paid sick leave or a single PTO bank, the employer may require employees to draw from that bank.
• Employers that provide separate sick leave and vacation banks cannot require an employee to draw from their vacation bank if the sick leave bank is empty.
• Employees with no accumulated sick leave (or combined PTO) cannot be forced to accrue a negative balance.

Employers Do Not Have to Pay for Weekly Tests

The ETS does not require employers to pay for weekly COVID testing or to compensate employees for the time they spend testing. However, under Oregon and Washington law, employers are generally required to pay for out-of-pocket expenses for work-related medical exams and pay for the time employees spend traveling to medical exams.

Employer Documentation Requirements

No later than December 5, 2021, employers must have a roster indicating the vaccination status of all employees.

• Vaccinated employees must provide acceptable proof of the vaccination, and the employer must maintain a physical or digital copy of the documentation.
• Employers must maintain a record of each test result required to be provided by each unvaccinated employee.
• These records are considered to be employee medical records and must be maintained confidentially and must not be disclosed except as required or authorized by the ETS or other federal law.

Requirements of Employer’s Written Policy

Employers must have written policies and procedures in place by December 5, 2021. Further, employers are required to notify each employee, in a language and at an appropriate literacy level, of the requirements of this ETS and the policies and procedures the employer is adopting, including:

• The process that will be used to determine vaccination status
• The paid leave an employee is entitled to for vaccinations and side effects
• A detailed explanation of how the employer will collect weekly test results
• The requirement that employees disclose positive test results as soon as reasonably possible and that the employer will immediately remove any employee testing positive until meeting the CDC’s return-to-work criteria
• Information regarding vaccine efficacy, safety, and the benefits of being vaccinated (the CDC’s Key Things to Know About COVID-19 Vaccines would satisfy this requirement)
• A statement that employees will be safe from retaliation for reporting work-related illnesses or injuries, or from exercising employee rights under the ETS, or filing an OSH complaint
• And finally, employers must notify individuals of the criminal penalties for knowingly supplying the employer with false statements or documents.

For questions related to OSHA vaccination and testing rules, or for other questions about navigating COVID-19 in the workplace, contact Christine Zinter at (503) 721-2643 or [email protected]

The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.