Making Sense of the New OSHA Vaccine Mandate

The Occupational Safety and Health Administration (OSHA) released its highly anticipated COVID-19 Vaccination Emergency Temporary Standard (ETS). The ETS is effective immediately upon publication in the Federal Registrar, which is scheduled for Nov. 5, 2021.

Unless otherwise stated below, the ETS compliance requirements take effect 30 days after such publication. Employers covered by the standard must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with the exception of employers that instead adopt a policy requiring employees to either get vaccinated or choose to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

The ETS covers all employers with a total of 100 or more employees, except  workplaces either:

• Covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance)
• In settings where any employee provides healthcare services or healthcare support services when subject to the requirements of 29 CFR 1910.502, the Healthcare ETS

The ETS does not apply to employees of covered employers in one or more of these circumstances:

• Who do not report to a workplace where other individuals, such as coworkers or customers, are present
• While working from home
• Who work exclusively outdoors

Determining Employee Vaccination Status

Under the ETS, employers are now required to obtain “acceptable proof” of vaccination status of each employee. This determination must include whether the employee is fully vaccinated, which is two weeks after the full required vaccine course is completed, or partially vaccinated. Generally, “acceptable proof” requires official documentation (such as a Vaccination Record Card). If an employee is unable to produce the required documentation, the employee must attest to their vaccination status in a signed, dated statement. Any employee who does not provide “acceptable proof” of vaccination status must be treated as not fully vaccinated for purpose of the ETS.

Employers must also maintain a record of each employee’s vaccination status and preserve “acceptable proof” of vaccination while the ETS remains in effect, which is estimated to be six months.

Employers must now support an employee’s efforts to obtain the COVID-19 vaccination by providing up to four hours of paid time off, including travel time, at the employee’s regular rate of pay for this purpose. Employers must also provide reasonable recovery time and paid sick leave for employees to recover from side effects experienced following vaccination.

Requirements for Employees Who are Not Fully Vaccinated (Required 60 days after Publication)

Employees who are not fully vaccinated and who report at least once every seven days to a workplace must be tested for COVID-19 at least once every seven days and must provide documentation of the most recent COVID-19 test result to the employer. The test cannot be both self-administered and self-read unless observed by the employer or authorized telehealth proctor.

Employer payment for testing is not mandated in the ETS but may be required by other laws, regulations, collective bargaining agreements, or collectively negotiated agreements.

Employers also 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, subject to some exceptions.

Employee Notification of a Positive COVID-19 Test and OSHA Reporting

Regardless of COVID-19 vaccination status or any COVID-19 testing required under the ETS, employers must require each employee to promptly notify them of a positive COVID-19 test result or of a licensed healthcare provider’s diagnosis of COVID-19 and immediately remove any employee who receives a positive test or diagnosis.

Employees who test positive or are otherwise diagnosed, cannot return to the workplace unless they receive a negative COVID-19 test result and meet the return to work criteria in the Center for Disease Control’s isolation guidance or receive a recommendation to return to work from a licensed healthcare provider. The ETS does not require employers to provide paid time off to any employee for removal from the workplace.

The ETS requires that employers report to OSHA:

• Each work-related COVID-19 fatality within eight hours of learning about the fatality
• Each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.

Establish a Policy and Notify Your Workforce

Employers are required to inform each employee, in a language and at a literacy level that the employee understands, the ETS requirements and employer ETS policy.

Employers must also provide the document, “Key Things to Know About COVID-19 Vaccines,” available at the CDC website, as well as notifying employees of the prohibitions against discharge, retaliation, and discrimination for reporting work-related injuries or illness and of the penalties associated with providing false statements or documentation.

Maria Fracassa Dwyer and Nadine Dabaja are labor and employment attorneys at Clark Hill.