Thursday, November 4, 2021

BREAKING NEWS: OSHA publishes its vaccine-mandate emergency temporary standard

Write down November 4, 2021, as the Employment Lawyer Superbowl. At 8:45 am this morning, OSHA published its Covid-19 Vaccination and Testing Emergency Temporary Standard in the Federal Register. You can download and read all 490(!) pages of it here.

Most importantly, this rule takes effect immediately upon its publication in the Federal Register — i.e., today — but employers have 30 days, or until December 5, 2021, to comply with all requirements except testing for employees who are not fully vaccinated (which has a January 4, 2022, compliance date). 

This means that by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.

Coverage — The ETS covers all employers with 100 or more employees (and regardless of contradictory state or local measures), measured on a company-wide basis, except: 

  1. Those employers that are already covered by the Safer Federal Workforce Task Force Covid-19 vaccine mandate for federal contractors and subcontractors; and
  2. Those employers covered by OSHA's Covid-19 Healthcare Emergency Temporary Standard.
The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.

Employer Policy on Vaccination — The ETS requires covered employers to develop, implement, and enforce a mandatory Covid-19 vaccination policy.

Testing in Lieu of Vaccination — The ETS allows for an exception to mandatory vaccinations for employees who elect weekly Covid-19 testing. Those employees must also wear a face-covering while at the workplace and while in a vehicle with another person for work-related purposes. Employees who opt for weekly testing in lieu of vaccination can be required to cover the cost of such testing.

Determination of employee vaccination status — The ETS requires employers to 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. 

Paid Time Off — The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose. 

Handling Positive Covid Tests — The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive Covid-19 test or are otherwise diagnosed with Covid-19; (2) immediately remove any employee from the workplace who received a positive COVID-19 test or is diagnosed with Covid-19, regardless of vaccination status; and (3) keep removed employees out of the workplace until they meet CDC criteria for returning to work. 

Information to Employees — The ETS requires employers to provide employees the following in a language and at a literacy level employees will understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document "Key Things to Know About Covid-19 Vaccines"; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. 

OSHA Reporting Requirements —The ETS requires employers to report work-related Covid-19 fatalities to OSHA within 8 hours of learning about them, and work-related Covid-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. 

Availability of Records — The ETS requires employers to make available for examination and copying an employee's Covid-19 vaccine documentation and any Covid-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. 

Next steps? How should covered employers respond? You need to get your Mandatory Vaccination Policy drafted, disseminated, and implemented ASAP, as you only have 30 days to comply. Thankfully, OSHA has provided a couple of samples for employers to modify and use (Mandatory Vaccination Sample Policy and Vaccination or Testing and Face Covering Sample Policy)

You also need to understand, however, that lawsuits will follow, that there is a good chance that a will enjoin this rule prior to its Dec. 4 compliance date. Thus, it is possible, if not probable, that this ETS will never actually require any employer to do anything. But, it certainly makes sense to be prepared by preparing that mandatory vaccination policy now. The clock is ticking.