On September 9, 2021, President Biden outlined his plan for mandated COVID-19 vaccination in the workplace. Since that time, we have provided timely and sequential updates explaining the guidance for compliance with this mandate for federal employees, contractors and subcontractors. On Friday, November 5, 2021, OSHA issued its 490 page draft of its Emergency Temporary Standard (ETS) and corresponding guidance for mandated COVID-19 vaccination for private sector employers with 100 or more employees. This ETS is scheduled to take effect in approximately 30 days.  Here is a summary of the basic components of the ETS. Thereafter, we will provide sequential articles that explain the nuances of the various subsections of the ETS and their application to our employer clients.

The OSHA ETS requires each employer to develop and implement a written mandatory vaccination policy. The policy must require vaccination of all employees.  All new employees will be required to be fully vaccinated at the time of hire or as soon as practicable.  Limited exceptions may apply to employees:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or
• For employees who are legally entitled to an exception/accommodation based on medical necessity (ADA) and/or sincerely held religious beliefs.

Employers may adopt a policy, in accordance with the ETS, that allows unvaccinated employees to remain at work subject to periodic testing and compliance with safety mandates. We will provide specific updates as to required language for the policy and definition of the various provisions.

This ETS defines “workplace” as a physical location where the employer’s work or operations are performed.  The definition does not include an employee’s residence.  As such, it may exclude employees that work from home subject to their specific job descriptions and reporting requirements. Other exclusions may apply, including but not limited to, employees that work in designated areas where other individuals, such as coworkers or customers, are not present and/or employees who work exclusively outdoors.  These exceptions must be evaluated and refined in their application to each individual employer.

Employers must determine and record the vaccination status of each employee. Employers must require each employee to provide acceptable proof of vaccination status including whether they are fully or partially vaccinated. Acceptable proof of the vaccination is:

• The record of immunization from a healthcare provider or a pharmacy;
• A copy of the COVID-19 vaccination record card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state or tribal immunization information system; or
• A copy of any other official documentation that contains the type of vaccine administered.

In instances where an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee that includes an attestation of their vaccination status is required. 

Employers must treat any employee that does not provide one of the acceptable forms of vaccination proof as “not fully vaccinated”. The employer must maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination for each employee for as long as the ETS remains in effect. The employer must maintain a roster of each employee’s vaccination.   Employers are required to retain both the records and the roster.  Collectively these records are considered to be employee medical records and must be kept confidential.

Employers must provide a reasonable length of time for each employee to receive a vaccination. Specifically, employers must provide up to four (4) hours of paid time, including travel time, at the employee’s regular rate of pay to secure a vaccination. Employers must also provide reasonable time and paid sick leave to recover from side effects experienced by employees related to vaccination. 

Employers must ensure that each employee who is not fully vaccinated is regularly tested. The condensed interpretation of this rule is that any employee, not fully vaccinated, entering a workplace where coworkers and/or customers are present, must be tested every seven (7) days and provide documented proof of a negative test result.  Approved COVID-19 tests include:

• Test that are cleared and approved or authorized by the FDA;
• Test that are administered in accordance with authorized instructions;  and
• Tests that “are not both self-administered and self-read” unless observed by employer or authorize telehealth proctors.

Obviously, this is an area that must be scrutinized to insure that the tests are compliant with the ETS.

Employers must ensure that employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with other persons for work purposes. Mandatory face coverings must completely cover the nose and mouth.  They must be made of at least two or more layers of breathable fabric and be secured to the head with ties, ear loops or elastic bands. The facemask must fit snugly over the nose mouth and chin with no large gaps on the outside of the face. There are exceptions and/or additional provisions which explain the potential use of faceguards, respirators and even gators.  We will detail these provisions in future publications.

The ETS directs notice requirements for employers.  Specifically, employers must provide notice of a written policy “in a language and literacy level” that employees can understand. In particular, employers must provide “Key Things to Know About COVID-19 vaccines “- a publication that speaks to the efficacy, safety and benefits of COVID-19 vaccination.  Notice requirements must acknowledge and identify prohibitions against discrimination or discharge for reporting work-related injuries or illnesses.

This is a cursory summary of the ETS and related guidance.  The document is expansive and its terms and conditions are comprehensive.  In the coming days, attorneys from our Employment Law Group will provide updates detailing the specific requirements and the potential impact of each section.  The breadth and scope of this ETS demands that we dissect the relevant parts in manageable sections. Despite its efforts toward definition there will, undoubtedly, be areas of dispute, confusion and legal challenge.  We anticipate follow-up guidance from OSHA in the near future.  This article is designed to advise employers of the release of the ETS, its intended effective date for implementation and the basic requirements for workplace compliance.  We strongly suggest employers review their current policies for modification and identify points of concern or address for review by competent legal counsel. 

If you have any questions regarding the new OSHA ETS, please contact our Employment Law Group at 1-888-488-2638 or email at EmploymentLaw@c-wlaw.com.