New OSHA Vaccination Requirements For Employers With 100 Or More Employees (And Additional Advice for California Employers)

Update 1/13/22: U.S. Supreme Court Stays Implementation of OSHA ETS Regarding Vaccination and Testing for Large Employers

This morning, the United States Supreme Court stayed implementation of the Emergency Temporary Standard released by OSHA in November 2021 (“ETS”).

The initial release of the ETS prompted numerous legal challenges. Shortly after its release, the United States Court of Appeals for the Fifth Circuit stayed implementation of the ETS in light of a challenge brought in that district. Shortly thereafter, every challenge of the ETS from around the country was consolidated into a single case before the Sixth Circuit, which subsequently lifted the stay, prompting OSHA to announce in mid-December that most requirements of the ETS would become effective on Jan. 10, 2022, with the testing requirements becoming effective on Feb. 9, 2022.

With its ruling this morning, the Supreme Court has reinstituted the stay that was put in place by the Fifth Circuit, meaning the ETS is on hold until after its merits have been fully resolved by the courts (by the Sixth Circuit, or, if necessary, by the Supreme Court). The Court’s order sends a strong signal that even if the ETS is approved by the Sixth Circuit, the Supreme Court is likely to strike it down—though we won’t know that for certain unless and until it happens. In the meantime, the ETS is not in effect, and it is reasonable to expect that it will be weeks, if not months, until the merits of the ETS are finally resolved. Stay tuned.

In the meantime, states and localities continue to have their own requirements and guidance that employers are required to monitor and implement (including Cal/OSHA’s ETS).

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On Sept. 9, 2021, President Joe Biden announced his COVID-19 Action Plan. The Action Plan called on the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.

On Nov. 4, 2021, OSHA released the rule in the form of an Emergency Temporary Standards (“OSHA ETS”). Here are ten things you need to know about the OSHA ETS:

• How To Count To 100: (1) The applicable number is the total number of employees employed on November 5, 2021—this is the headcount that will be used for the duration of the OSHA ETS. (2) The count must be done at the employer level not the individual location level. (3) Part-time employees do count towards the total number of employees. (4) Employees who work from home do count towards the total number of employees. (5) Independent contractors do not count towards the total number of employee.

• The ETS Is Effective Immediately: Employers need to start familiarizing themselves with the OSHA ETS now. Employers will need to implement all requirements (other than testing unvaccinated employees) and distribute policies and materials by December 5, 2021. Employers will need to start testing unvaccinated employees by January 4, 2022.

• Special Rules For California And Other States: The OSHA ETS is federal law. In other words, all 50 states will need to follow it. That being said, 22 states or territories have already implemented their own rules. Those 22 states will have to revise their rules or implement new rules to be just as or even more protective than the OSHA ETS by December 4, 2021. For example, California adopted and re-adopted its own Emergency Temporary Standard (“Cal/OSHA ETS”); California will need to revise the Cal/OSHA ETS or implement new rules to be at least as protective as the OSHA ETS by December 5, 2021.

• How To Determine Employee’s Vaccination Status: An employee should provide their COVID-19 vaccination record or a digital copy of it. If they don’t have it, they should contact their vaccination provider for a new copy or use their state’s vaccination registry (e.g., California’s vaccination registry is available at the following webpage: https://myvaccinerecord.cdph.ca.gov/). If an employee is unable to use these methods then they may attest to their vaccination status. The employee must: (1) attest to their vaccination status (fully vaccinated or partially vaccinated); (2) attest that they have lost or are otherwise unable to produce proof required by the standard; and (3) include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” The attestation should also include the type of vaccine the employee received (e.g., Pfizer), the date(s) they received the dose(s), and the name of the health care physician or clinic where they received the dose(s) (e.g., CVS in the Target store located at …).

• Paid Time Off: (1) Employers must provide employees with up to 4 hours of paid time off, at the employee’s regular rate of pay, for each vaccination dose. (2) Employers may require employees to use accrued paid sick leave to recover from side effects only. Employers cannot require employees to use advanced sick leave or borrow against future paid sick leave. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. An employer can cap the time employees use to recover from side effects; OSHA presumes that two days of paid sick leave per vaccination dose is reasonable. (3) The OSHA ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements (e.g., Cal/OSHA ETS).

• Unvaccinated Employees: Unvaccinated employees, including employees with a medical or religious accommodation, will need to be tested at least once every seven days and wear a face covering. Employees who do not report to a workplace are exempt.

• COVID-19 Positive Employees: Regardless of COVID-19 vaccination status or any COVID-19 testing, the employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee: (1) receives a negative result following a positive result, (2) meets the return to work criteria in CDC’s “Isolation Guidance”, or (3) receives a recommendation to return to work from a licensed healthcare provider.

• How To Implement Policies/Templates Are Available: Employers must implement a “mandatory vaccination policy” that includes: the process that will be used to determine employee vaccination status, the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations, the procedures employees need to follow if they test positive for or are diagnosed with COVID-19, and the procedures to be used for requesting records (i.e., providing an individual’s vaccination record / the aggregate number of fully vaccinated employees along with the total number of employees within one business day). Employers must provide unvaccinated employees a “vaccination or testing and face covering policy” that includes: information about the employer’s policies and procedures for COVID-19 testing and face coverings. Templates for both policies are available on OSHA Covid-19 Vaccination and Testing ETS.

• Documents For Your Employees: An employer must inform each employee, in a language and at a literacy level the employee understands, about the OSHA ETS (e.g., provide employees with a copy of the policies in their native language and ensure that they actually understand it). In addition, employers must provide employees with the document Key Things to Know About COVID-19 Vaccines, a fact sheet on Workers’ Rights under the COVID-19 Vaccination and Testing ETS (available in Spanish), and a fact sheet on Information for Employees on Penalties for False Statements and Records (available in Spanish).

• No Discrimination/Retaliation: Employers must remain cognizant of individual barriers to obtaining a COVID-19 vaccination. A person may have allergies to the ingredients in the vaccination, an autoimmune disease, a mental illness that prevents them from being vaccinated, or religious objections to vaccination. The OSHA ETS does not change the employer’s obligation to reasonably accommodate individuals with a medical condition, disability, or sincere religious belief under state and federal civil rights laws.