OSHA Releases Vaccination Mandate Rule
Senior Compliance Attorney
OSHA’s COVID-19 Vaccination Mandate: What Employers Need to Know
Catch up on M3’s compliance and risk management experts’ take on OSHA’s ETS, where they break down the fine print of this crucial employer mandate.
Dig into M3’s employer toolkit for navigating the OSHA ETS mandate, complete with flowcharts, templates, tools, and resources.
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COMPLY ON THE FLY EP 5: SO, WHAT ABOUT THAT OSHA ETS VACCINE MANDATE?
On November 4, 2021 the Occupational Safety and Health Administration (OSHA) released their emergency temporary standard (ETS) mandating workforce vaccinations. The ETS applies to employers governed by OSHA who employ 100 or more employees and was published in the Federal Register on November 5, 2021.
What follows is an overview of the 490 page ETS:
THE RULE
This OSHA ETS sets a COVID-19 vaccination standard for private sector employers with 100 or more employees. In order to meet the requirements of the ETS, employers must ensure that their employees are fully vaccinated against COVID-19 or test negative for COVID-19 on a weekly basis and wear a mask in the workplace.
Applicability
All employers governed by OSHA rules and employ 100 or more workers are required to comply with this rule. Initial applicability based on the size requirement is determined on November 5, 2021. If the employer is not initially subject to the ETS based on size, but later exceeds the 100 employee threshold, the employer is expected to comply with the ETS at that point.
This ETS does not apply to state and local government employers in states without OSHA-approved occupational safety and health programs. For a list of states with OSHA approved plans click here.
Size
Employers must include all of the following employees at the corporate level (not by location) toward the 100 count threshold:
- Part-time
- Full-time
- Remote employees
- Off-site employees
Independent contractors and staffing agency employees are not counted toward the threshold. Seasonal and temporary workers are considered if employed at any time during the applicability of the ETS.
Testing
Employees who work for an applicable employer and choose not to be vaccinated must be tested on a weekly (7 day) basis. Employers have the option of paying for the test or having the employee cover the expense unless required by state law or union contracts. In addition, any employee who is not vaccinated must also wear a facemask at work as part of this safety standard.
Proof
An employee who is vaccinated has a number of ways to provide their employer with proof of vaccination. This includes:
- Original record of vaccination
- A copy of their vaccination record card
- A copy of their medical records documenting vaccination
- An official document that contains vaccination type, date(s) of administration and name of provider
- A statement attesting to vaccination including specifics on their vaccination. This manner does include penalties for a false attestation
Exemptions
The following categories of employees are exempt from the vaccination and testing requirements:
- 100% remote employees (employees working remotely or who do not report to a place of work where there are other employees)
- 100% outdoor employees
- Employees covered by the Healthcare ETS
*If these employees have to enter the workplace at any time, vaccine or testing/masking requirements apply.
Time off
- To receive the vaccination: Employers cannot require employees to use any employer provided paid time off to receive the vaccine. Employers are required to provide reasonable time off during work hours for each vaccination dose(s) for up to 4 hours at the employee’s regular rate of pay.
- Vaccination side effects: Employers may require an employee to use employer provided paid leave for purposes of recovering from vaccination side effects. If employers provide employees with multiple types of paid leave, the employer can only require employees to use sick leave for this purpose. If an employee does not have enough accrued paid leave, the employer cannot require the employee to go into the negative for such leave. OSHA states that two days per dose is a reasonable cap on the amount of time off an employer would allow for this reason.
**This paid time off is not available to those that already received the vaccine prior to the publishing of this ETS.
Employer Policy
Employers subject to this ETS are required to have a workplace policy implementing the requirement.
Employee Notification
Employers subject to this ETS must communicate with their employees regarding the policies and procedures the employer has regarding this ETS. The employer must notify each employee in a language and at an appropriate literacy level that the employee understands. This would include process to determine vaccination status, applicable paid time off, procedures following a positive COVID test, testing procedures and procedures to be used for requesting records.
Additional information from the Centers for Disease Control and Prevention (CDC), information regarding non-discrimination and reference to criminal penalties for supplying the employer with false statements or documentation are also required.
Effective Dates
This ETS goes into effect on November 5, 2021. It will be in effect for at least 6 months.
The following are required by December 5, 2021:
- Written vaccination policy
- Determine vaccination status for all employees; create and maintain vaccination roster
- Provide support for employee vaccination
- Require employees to inform employer of positive COVID test or diagnosis
- Remove any employee with positive COVID test or diagnosis
- Require face masks for unvaccinated employees in the workplace or in a vehicle with other employees
- Provide employees with information regarding the ETS
- Report work-related COVID fatalities to OSHA within 8 hours and work-related COVID hospitalizations within 24 hours
- Make certain records available
The following is required by January 4, 2022:
- Testing for employees that are not fully vaccinated on a weekly basis or within 7 days before returning to work if away from the workplace for 1 week or more.
To help employers understand the new rule, OSHA has provided a robust package of tools including a webinar, FAQs, fact sheets and policy templates.
Key Takeaway
This emergency temporary standard is the latest effort by the federal government to manage the effects of the COVID-19 pandemic. Employers who have 100 or more employees should review the definitions and rules provided by OSHA.
All organizations who meet the employee threshold of the emergency temporary standard should work with their legal counsel to ensure they are compliant with the new rules and understand all applicable penalties.
