November 5, 2021
Two months ago, President Biden announced he would task OSHA (the federal health and safety agency) to develop a new emergency temporary standard (“ETS”), to mandate employers with 100 or more employees to require their employees either to get fully vaccinated or get weekly COVID testing. For the last two months we’ve been waiting for the agency to provide guidance. Yesterday, the new rule was finally issued. It becomes effective today, Nov. 5, 2021, yet gives employers two more months (January 4, 2022) to comply with the vaccination issue but only until December 4, 2021, to comply with the masking mandate.
This new federal mandate requires employers to adopt mandatory vaccination policies for their workplaces.
WHAT IS A MANDATORY VACCINATION POLICY?
As explained by OSHA, to meet the definition of “mandatory vaccination policy,” the policy must require vaccination of all employees, including all new employees as soon as practicable. OSHA allows for two kinds of exemptions to the vaccine mandates—medical and religious. See our earlier article discussing such exemptions. OSHA does not permit exemptions based on prior infection. The new rule, however, allows one alternative to vaccinations: employees may undergo regular COVID-19 testing and wear a face covering at work.
EMPLOYER OBLIGATIONS ON VACCINES AND COVID OUTBREAKS.
While covered employers are required to provide employees with up to four hours of paid time to receive each vaccination and reasonable time and paid sick leave to recover from vaccination side effects, employers are not required to pay for costs associated with weekly COVID-19 testing or costs of face coverings. This rule is intended to encourage vaccination over weekly testing.
ETS preempts (overrules) inconsistent state and local laws that ban or limit employers’ authority to require vaccinations. Employers, however, can still be required to pay for costs associated with testing or the use of face coverings by other federal or state laws or collective bargaining obligations. If employers want to avoid such costs, vaccination mandates would be a better option. It is important to recognize that while the ETS offers the testing option, employers do not have to agree. Employers have the right to mandate vaccinations, subject to their duty to accommodate. (Click here to see our last article addressing accommodation obligations).
ETS requires employers to immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19. Such employees must remain out of the workplace until they meet criteria for returning to work. Again, the ETS does not require employers to provide paid time to any such employees who miss work.
PROOF OF VACCINATION AND RECORDS REQUIRED.
Under the new rule, employers can and must require employees to provide an acceptable proof of vaccination status, which includes: (i) immunization record from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or (v) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Employees who cannot provide acceptable proof are considered unvaccinated.
Employers must maintain a record and a roster of each employee’s vaccination status while ETS is in effect. According to OSHA, the roster “must list all employees and clearly indicate for each one whether they are fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.”
WHO IS INCLUDED IN THE 100-EMPLOYEE THRESHOLD?
ETS only applies to employers with at least 100 employees. In determining the number of employees, employers must include all employees across all of their U.S. locations. For purpose of a franchisor-franchisee relationship, franchisee employees are counted separately from franchisor employees. The question, however, is how do you count employees among multiple stores owned by one franchisee? We suspect OSHA will revert to its general standards and claim all employees working at stores owned by the same franchisee should be counted collectively. Most of the current speculations seems to lean in this direction but only time will tell.
While part-time employees do count towards the company total, independent contractors do not. Also note, federal contractors and subcontractors are not covered by this ETS, but by federal contractor guidelines.
FACE COVERINGS
The agency is not requiring the use of face coverings by fully vaccinated workers, though it strongly encourages it. Additionally, the ETS says that “employers must not prevent any fully vaccinated workers from voluntarily wearing a face mask or covering unless doing so would create a serious risk of injury or death, such as interfering with the safe operation of machinery.”
Employers will need to have workers fully vaccinated by January 4, 2022, or required testing must begin on January 5, 2022. However, the facial masking requirements for unvaccinated workers begin on December 5, 2021.
The employer must ensure each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes. However, an exception exists when alone in a room, or for a limited time while eating or drinking, or when wearing a respirator or face mask.
IS THIS THE FINAL WORD ON THIS ISSUE?
No! FIRST, the ETS will be in effect for only six months. After that, OSHA will determine if the standard should be made a permanent rule. SECOND, we expect/hope more guidance will be issued. As OSHA solicits comments on its rule, we expect more ambiguities will be identified. We further expect OSHA and experts in the field to address and clarify these issues in the near future. THIRD, lawsuits are likely. Within hours of release of the new rule yesterday, nine states were already suing on the new rule. We expect many advocacy groups to fight this as well. We expect court proceedings, especially injunctions, to be requested before the first deadline is reached on December 4, 2021.
NEXT STEPS.
First, count your employees and determine if the ETS applies to you. Second, decide if you want to mandate vaccinations, subject to your duty to accommodate. Third, if you choose not to mandate vaccinations, get ready to comply. When in doubt, be cautious. We expect litigation, don’t you be the chosen one. Fourth, keep watching for further development. Today is day 2; with each day the interpretations of the ETS will get better and better. Finally, seek competent legal counsel. Like so much else involving COVID, nobody knows exactly what this law means. Good luck!
The subject matter of COVID-19 posts is often very technical. It is also an evolving area of science and law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March 2020, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.
