November 9, 2021
ShareOSHA Issues Emergency Temporary Standard on Vaccinations and Testing
On Thursday, November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued its “long-awaited” Emergency Temporary Standard (“ETS”) on the COVID-19 vaccine.
We wanted to provide a summary for your benefit, but encourage you to seek further consultation and assistance on this issue:
Application
This ETS applies to all covered private companies with 100 or more employees at all times while the ETS is in place. It does not apply to healthcare providers subject to their own ETS. Furthermore, the requirements of this ETS do not apply to the employees of covered employers: (1) who do not report to a workplace where other individuals, such as coworkers or customers, are present; or (2) while working from home (the employees must exclusively work from home); or (3) who work exclusively outdoors (e.g. landscaping, construction laborers, highway maintenance workers). OSHA intends these provisions to exempt workplace settings where workers do not interact indoors with other individuals, and to exempt work performed in the employee’s home regardless of whether other individuals may be present in the home.
The employee count is based on the size of the company as a whole (not individual locations) and it includes part-time employees (but not independent contractors).
I am including some of you who own or work for companies with fewer than 100 employees. This ETS is optional for you for now, but keep in mind, OSHA is currently considering similar directives for companies with fewer than 100 employees.
Vaccine or Testing
In sum, the requirement is that each covered employer establish, implement, and enforce a written vaccination policy (which must require vaccination to all employees other than those who are exempt for religious or medical reasons) unless the employer adopts an alternative policy requiring weekly COVID-19 testing and mandatory face coverings for unvaccinated employees.
If an employer elects to go the mandatory vaccination route, it must obtain acceptable proof of vaccination status (i.e. through a record from a health care provider, a copy of the COVID-19 Vaccination card, or even a signed and dated attestation when the employee is unable to provide proof of vaccination). The ETS requires that employers maintain a record and roster of each employee’s vaccination status and such records must be preserved while the ETS is in place.
If employers elect to go the testing route, they must require testing at least once every seven days and employees must provide documentation of each of the COVID-19 test results no later than the 7th day following the date the employee last provided a test result. The tests must be done in a way that detects current infection through an FDA-cleared, approved, or authorized test (including antigen tests), is administered in accordance with authorized instructions, and is not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
There is a mandatory notification requirement which requires each employee to be notified of its obligation to notify the employer if they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider and such employee must be immediately removed from the workplace until the employee receives a negative COVID-19 test, meets the CDC requirements to return to work, or receives a recommendation from a licensed healthcare provider to return.
All records must be maintained as confidential medical records and not disclosed except as required by the ETS or federal law.
Paid Time Off
Employers are required to provide a “reasonable amount of time” for each employee to get the vaccine (up to 4 hours of PTO, which includes travel time) and paid sick leave to each employee who have side effects. If an employer has a sick leave plan in place, the employees can use such sick leave to recover from the side effects of COVID-19.
Notification to Employees
Employers are required to notify their employees of their rights and responsibilities under the ETS, information about available COVID-19 vaccines, their protections against retaliation and discrimination, and potential penalties for knowingly providing false information to their employer. This notification must be in a language and at a literacy level the employee understands.
Employers must also inform employees about the process that will be used to determine employee vaccination status. In addition, employers must inform employees about the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations. Employers must also inform employees about the procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider.
Finally, employers must also provide information to each employee about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated. To meet this requirement, employers must provide the CDC’s document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (CDC, October 7, 2021), to each employee.
Effective Dates
The compliance date for all provisions in the ETS is 30 days from today or by December 4, 2021 except for testing which is required by 60 days or by January 3, 2022. Keep in mind, this serves as a temporary standard which is subject to comment (and thus potential changes).
Reporting
Employers must report to OSHA every work-related COVID-19 fatality within 8 hours and each work-related COVID-19 in-patient hospitalization within 24 hours.
Vendors
Let me know if you need help in this regard and I’d be happy to make an introduction to one or more vendors who can assist with COVID-19 vaccine tracking and testing.
Penalties for Non-Compliance
OSHA has enforcement authority over the ETS and can require employers to report compliance or enter the workplace to audit compliance. Failure to comply with the ETS can result in penalties up to $13,653 per violation and ten times that amount for repeat violations or willful disregard of the ETS requirements.
Legal Challenges
There were a number of legal challenges to the ETS, including once “successful” challenge in the 5th Circuit which resulted in a “stay” of the requirements pending an outcome from the Court. The parties have a very expedited briefing schedule, and the Court is expected to rule fairly quickly (because this was brought on an “emergency” basis). Florida also filed its own lawsuit and is separately challenging the requirements, along with a number of other states.
However, if/until there is a legal determination invalidating the ETS in your jurisdiction, I still recommend you advise your employees about it, what is expected of them, and you can let them know that the situation is somewhat fluid as it is going through some legal challenges.
We are continuing to monitor these cases. Please stay in touch with us for updates.
Specific Questions or Assistance
We are here for you. Let us know if you have specific questions or need help with implementing these requirements.
Angelo Filippi, Partner Adam Kemper, Partner
afilippi@kklaw.com akemper@kklaw.com
DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg nor its individual attorneys or staff are responsible for errors, omissions, and/or typographical errors – always seek competent legal counsel.
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