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November 2021

OSHA COVID-19 Vaccine and Testing Rule

Updated Saturday, November 6, 2021

On Thursday, November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration ("OSHA") released its Emergency Temporary Standard ("ETS") requiring large employers to adopt a mandatory vaccination plan for its employees, in which employees can choose to become vaccinated or submit to weekly testing and mask-wearing in the office. The ETS takes effect Friday, November 5, 2021, and OSHA anticipates it will be in place for approximately six months. Notably, the ETS applies to all states and preempts any state or local rule which purports to prohibit vaccination, testing or mask-wearing.  States and employers are free to adopt rules more strict than the ETS, such as requiring vaccination without permitting an employee to choose between vaccination and testing.

How to Determine Employee Threshold

The ETS applies to all private companies with 100 or more employees as of November 5, 2021. If an employer has less than 100 employees as of the effective date, but grows to 100 or more, the ETS applies for the duration of the rule’s application. The ETS does not apply to federal or healthcare employers who are subject to their own ETS.

Who to count:

  • Full-time and part-time workers regardless of vaccination status;
  • Employees who work offsite or at multi-employer worksites;
  • Fully remote workers;
  • Temporary and seasonal workers directly employed by the employer; and
  • Employees who work exclusively outdoors.

Who not to count:

  • Independent contractors;
  • Staffing agency employees; or
  • Employees of other contractors at a multi-employer worksite.

While employers must count fully remote workers and workers who work exclusively outdoors for purposes of the 100 employee threshold, these workers are not subject to the mandates of the ETS.

Employers in unionized workplaces must follow the requirements of the ETS but it does not displace collective bargaining agreements that exceed the requirements of the ETS.

Vaccine and Testing Requirements      

Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy.  Employees have until January 4, 2022 to receive either the second dose of the Moderna or Pfizer vaccine, or the first and only dose of the Johnson & Johnson vaccine.

Employers must also establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing.  In addition, unvaccinated employees must wear a face covering while at the workplace.  All employees, therefore, must either get an approved COVID-19 vaccine, or be subject to weekly COVID-19 tests and a mandatory face-covering requirement while at work. 

Employer Obligations

Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. 

Employers must provide employees “reasonable” time during work hours to receive each vaccination dose, including up to four hours of paid time off at the employee’s regular rate of pay. Employers may not require the use of PTO or sick time.  The Department of Labor ("DOL") guidance indicates that if an employee chooses to receive their dose outside of work hours, the employer is not required to provide paid time off for receiving the shot, but is required to provide paid sick leave to recover from side effects experienced during working hours as explained below.

Additionally, employers must provide reasonable paid time off to recover from possible side effects.  For this purpose, employers may require the use of accrued paid sick leave. Employers may not require the use of vacation/PTO.  Please note that in some states, such as California, employees must elect to use paid sick time and employers cannot require this.  Note the requirement to provide paid time off for vaccination or side effects is not retroactive.

The ETS requires employers to ensure that unvaccinated employees are tested every week, or within seven days before returning to work.   Businesses are not required to pay for testing or provide face coverings under the rule. It is unclear whether employers are obligated to pay for testing in states which require such payment for mandatory vaccination programs, such as California.  Arguably, because the ETS is not a true vaccine mandate – because the employee has the choice to vaccinate or test weekly – then an employer is not required to pay for testing. We recommend employers in states with rules regarding mandatory vaccination programs consult with counsel before deciding to not pay for testing.

Employees may use over-the-counter tests but the DOL guidance indicates that the test cannot not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

In addition, employers must also provide employees with:

  1. Information about the requirements of the new rule and workplace policies established to satisfy the rule’s requirements
  2. The CDC document “Key Things to Know about COVID-19 Vaccines”
  3. Information about protections against retaliation and discrimination
  4. Information about laws that provide criminal penalties for knowingly supplying false statements or documentations.

Medical or Religious Exemptions and Accommodations

Employees may request a medical or religious exemption from vaccination requirements, but those employees must still test weekly. For workers who claim a religious or medical exemption prevents them from testing, the employer must engage in the interactive process and determine if a reasonable accommodation is possible.

Employer’s Obligations in Event of Positive COVID-19 Test

The new rule lays out a mandatory plan for employers in the event an employee tests positive for COVID-19.   Employers must do the following:

  1. Require employees to promptly provide notice when they receive a positive COVID-19 test;
  2. Immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test; and
  3. Keep removed employees out of the workplace until they meet criteria for returning to work.

Employees must not return to work until he/she/they:

  • Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
  • Meets the return to work criteria in CDC’s “Isolation Guidance”; or
  • Receives a recommendation to return to work from a licensed healthcare provider.

Employer Obligations in the Event of COVID-19 related Hospitalization or Death  

Finally, employers must report work-related COVID-19 fatalities to OSHA within eight hours of learning about the fatality.  Employers must also notify the OSHA about work-related COVID-19 hospitalizations within twenty-four hours of learning about the hospitalization.

Because of the complex nature of the ETS and the varying state and local rules which might be implicated, we encourage employers to reach out to the Employment law team at Gordon & Rees for further guidance.

Update as of November 6, 2021

On Saturday, November 6, the Fifth Circuit Court of Appeals issued a temporary injunction barring enforcement of the OSHA ETS. The court ordered an expedited briefing schedule though it has not disclosed an estimated time-frame for issuing an order as to whether a permanent injunction will issue. The matter may be reviewed at the Supreme Court level.

Since it may take weeks of planning for employers to comply with the ETS's deadlines, employers are advised to familiarize themselves with OSHA's requirements. Employers who have not done so already should consider polling their employees to determine who has been partially or fully vaccinated, which will help assess the administrative needs in complying with the ETS’s mandates. Employers should prepare to implement the ETS as if it will take effect but wait to implement its requirements until the final judicial outcome is certain.

We will continue to monitor this closely and provide an update when we know more.

Employment Law

Mercedes Colwin
Talia L. Delanoy
Debra Ellwood Meppen

Employment Law