ARTICLE
by Amy Kleinschmit, Chief Compliance Officer The Occupational Safety and Health Administration (OSHA) has issued an interim final rule relating to vaccine and testing requirements for large employers (100 or more employees). The interim final rule was published today, November 5, 2021. It is effective when published, however, the compliance date is December 6, 2021, for everything but COVID-19 testing for employees who are not fully vaccinated. The compliance date for COVID-19 testing is January 4, 2022. Comments are due by December 6, 2021. The interim final rule can be found here. Supporting resources from OSHA regarding this emergency temporary standard (ETS) can be found here. These tools/resources include fact sheets, policy templates, a webinar, and FAQs. Briefly highlighting some key points of the ETS: Covered Employer – the requirements under this interim final rule apply to employers with a total of 100 or more employees at any time this ETS is in effect. The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there. Part-time employees do count towards the total number of employees. For example, a company with 75 part-time employees and 25 full-time employees would be considered to have 100 employees and would be within the scope of this standard. Independent contractors do not count towards the total number of employees. Policy requirements. Covered employers must establish, implement and enforce a written mandatory vaccination policy. Alternatively, the employer may establish, implement and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering. However, if the worker requesting a reasonable accommodation cannot be vaccinated and/or wear a face covering because of a disability, as defined by the ADA, the worker may be entitled to a reasonable accommodation. In addition, if the vaccination, and/or testing for COVID-19, and/or wearing a face covering conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. Vaccination Status. The ETS requires that the employer must determine the vaccination status of each employee. This determination must include whether the employee is fully vaccinated. The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. The ETS specifies what is acceptable proof, which includes a copy of the COVID-19 Vaccination Record Card. Time off to get vaccinated. A covered employer must provide a reasonable amount of time to each employee for each of their primary vaccination dose(s) and provide up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose. Additionally, the employer must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose. Required Testing. The employer must ensure that each employee who is not fully vaccinated be tested. For an employee who reports at least once every 7 days to a workplace where other individuals such as coworkers or customers are present the requirement is that they: Must be tested for COVID-19 at least once every 7 days; and must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result. Different rules apply to employees that do not report during a period of 7 or more days to the workplace. Positive COVID-19 test. For both vaccinated and unvaccinated workers, each employee is required to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. Furthermore, they are to be immediately removed from the workplace and kept removed until the employee: (i) 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; (ii) meets the return to work criteria in CDC’s “Isolation Guidance”; or (iii) Receives a recommendation to return to work from a licensed healthcare provider. Please note - this section does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. Face Coverings. The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes. The interim final rule does include a number of exceptions. Employee Notice Requirements. The employer must inform each employee, in a language and at a literacy level the employee understands, about: (1) The requirements of this section as well as any employer policies and procedures established to implement this section; (2) COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html; (3) The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting a work-related injuries or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, this section. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act; and (4) The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation. Reporting Requirements to OSHA. Employers must report each work related COVID-19 fatality and each work related COVID-19 in-patient hospitalization to OSHA. Availability of Records. If requested by the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, the employer must provide the written policy, employee vaccine documentation and COVID-19 test results. COMMENTS - OSHA is also seeking comments/feedback on a number of other issues, such as whether or not portions of the rule, such as face coverings, apply to fully vaccinated persons. Should OSHA impose a strict vaccination mandate (i.e., all employers required to implement mandatory vaccination policies as defined in this ETS) with no alternative compliance option? Small Employers - OSHA is seeking comments on potentially imposing similar requirements on small employers, or those with less that 100 employees. OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs. Some of the questions posed by OSHA include - Have you instituted vaccination mandates (with or without alternatives), or requirements for regular COVID-19 testing or face covering use? What have been the benefits of your approach? What challenges have you had or could you foresee in implementing such programs? Is there anything specific to your industry, or the size of your business, that poses particular obstacles in implementing the requirements in this standard? How much time would it take, what types of costs would you incur, and how much would it cost for you to implement such requirements?
by Amy Kleinschmit, Chief Compliance Officer
The Occupational Safety and Health Administration (OSHA) has issued an interim final rule relating to vaccine and testing requirements for large employers (100 or more employees). The interim final rule was published today, November 5, 2021. It is effective when published, however, the compliance date is December 6, 2021, for everything but COVID-19 testing for employees who are not fully vaccinated. The compliance date for COVID-19 testing is January 4, 2022.
Comments are due by December 6, 2021.
The interim final rule can be found here.
Supporting resources from OSHA regarding this emergency temporary standard (ETS) can be found here. These tools/resources include fact sheets, policy templates, a webinar, and FAQs.
Briefly highlighting some key points of the ETS:
Covered Employer – the requirements under this interim final rule apply to employers with a total of 100 or more employees at any time this ETS is in effect.
The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
Part-time employees do count towards the total number of employees. For example, a company with 75 part-time employees and 25 full-time employees would be considered to have 100 employees and would be within the scope of this standard. Independent contractors do not count towards the total number of employees.
Policy requirements. Covered employers must establish, implement and enforce a written mandatory vaccination policy. Alternatively, the employer may establish, implement and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.
However, if the worker requesting a reasonable accommodation cannot be vaccinated and/or wear a face covering because of a disability, as defined by the ADA, the worker may be entitled to a reasonable accommodation. In addition, if the vaccination, and/or testing for COVID-19, and/or wearing a face covering conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.
Vaccination Status. The ETS requires that the employer must determine the vaccination status of each employee. This determination must include whether the employee is fully vaccinated. The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. The ETS specifies what is acceptable proof, which includes a copy of the COVID-19 Vaccination Record Card.
Time off to get vaccinated. A covered employer must provide a reasonable amount of time to each employee for each of their primary vaccination dose(s) and provide up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose. Additionally, the employer must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose.
Required Testing. The employer must ensure that each employee who is not fully vaccinated be tested. For an employee who reports at least once every 7 days to a workplace where other individuals such as coworkers or customers are present the requirement is that they: Must be tested for COVID-19 at least once every 7 days; and must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result. Different rules apply to employees that do not report during a period of 7 or more days to the workplace.
Positive COVID-19 test. For both vaccinated and unvaccinated workers, each employee is required to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. Furthermore, they are to be immediately removed from the workplace and kept removed until the employee: (i) 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; (ii) meets the return to work criteria in CDC’s “Isolation Guidance”; or (iii) Receives a recommendation to return to work from a licensed healthcare provider.
Please note - this section does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Face Coverings. The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes. The interim final rule does include a number of exceptions.
Employee Notice Requirements. The employer must inform each employee, in a language and at a literacy level the employee understands, about: (1) The requirements of this section as well as any employer policies and procedures established to implement this section; (2) COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html; (3) The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting a work-related injuries or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, this section. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act; and (4) The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation.
Reporting Requirements to OSHA. Employers must report each work related COVID-19 fatality and each work related COVID-19 in-patient hospitalization to OSHA.
Availability of Records. If requested by the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, the employer must provide the written policy, employee vaccine documentation and COVID-19 test results.
COMMENTS - OSHA is also seeking comments/feedback on a number of other issues, such as whether or not portions of the rule, such as face coverings, apply to fully vaccinated persons. Should OSHA impose a strict vaccination mandate (i.e., all employers required to implement mandatory vaccination policies as defined in this ETS) with no alternative compliance option?
Small Employers - OSHA is seeking comments on potentially imposing similar requirements on small employers, or those with less that 100 employees. OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs. Some of the questions posed by OSHA include - Have you instituted vaccination mandates (with or without alternatives), or requirements for regular COVID-19 testing or face covering use? What have been the benefits of your approach? What challenges have you had or could you foresee in implementing such programs? Is there anything specific to your industry, or the size of your business, that poses particular obstacles in implementing the requirements in this standard? How much time would it take, what types of costs would you incur, and how much would it cost for you to implement such requirements?