On November 5, 2021, OSHA issued its Emergency Temporary Standard (ETS) and corresponding guidance for mandated COVID-19 vaccination at private sector employers with 100 or more employees. A key component of the ETS requires each employer to develop and implement a written vaccination policy. According to OSHA, vaccination is a vital tool to reduce the presence and severity of COVID-19 cases in the workplace, in communities, and in the nation as a whole.
This Mandatory COVID-19 Vaccination Policy applies to all employees except for employees who (1) do not report to a workplace where other individuals (such as coworkers or customers) are present; (2) work from home; or (3) work exclusively outdoors. The Employer has the option of requiring all employees to actually become fully vaccinated, or in the alternative, to establish a testing and masking protocol for all employees who decline the vaccination.
As a general matter, all employees covered by the policy should be required to be fully vaccinated as a term and condition of employment. The policy would provide a definition of “full vaccination” status and a date by which such status must be achieved. Employers should also describe how employees may schedule their vaccination appointments, such as through an on-site clinic, with their own medical provider, or at a mass-vaccination center.
Moreover, employees are required to report their vaccination status and to provide proof of vaccination. As employees must provide truthful and accurate information about their COVID-19 vaccination status, the policy should outline acceptable documentation, including:
- The record of immunization from a healthcare provider or 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, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s).
Additional direction must be included if an employee is unable to produce one of these acceptable forms of vaccination proof, despite attempts to do so. The policy should also outline what specific information will be collected, describe how it will be accomplished, and confirm that confidential medical information will be protected.
Employees may request an exception from the mandatory vaccination policy if the vaccine is medically contraindicated for them or medical necessity requires a delay in vaccination. Employees may also be legally entitled to a reasonable accommodation if they cannot be vaccinated because of a disability, or choose not to do so because of sincerely held religious belief, practice, or observance. The policy must include specific instructions regarding how an employee may request such an accommodation.
The policy would include notice that employees may access up to four hours of necessary duty time per dose to travel to the vaccination site, receive a vaccination, and return to work. This would mean a maximum of eight hours of necessary duty time for employees receiving two doses.
Furthermore, employees may utilize up to a reasonable period of time immediately following each dose if they have side effects from the COVID-19 vaccination that prevent them from working. Generally, OSHA presumes that a “reasonable period of time” consists of at least two days. Employees who have no sick leave should be granted up to two days of additional sick leave immediately following each dose, if necessary. Please be reminded that outside of this particular Regulation, other laws such as the ADA and FMLA may require granting additional unpaid time off.
Employees must be required to notify employers of any positive COVID-19 result. Employers should outline their protocol and procedure for removing COVID-positive employees from the workplace and detail return to work criteria, using the CDC’s current guidelines.
Additionally, the policy should outline its process for COVID-19 testing in the event certain employees are granted an exemption for one of the reasons outlined above, or if the employer chooses to allow a voluntary opt out from the vaccination requirement. Specifically, employees who are not fully vaccinated by the deadline, and who report to the workplace at least once every seven days must be tested for COVID-19 at least once every seven days and must provide documentation of the most recent COVID-19 test result no later than the seventh day following the date on which the employee last provided a test result. Moreover, unvaccinated employees who do not regularly report to the workplace must nonetheless (1) be tested for COVID-19 within seven days prior to presenting to the workplace; and (2) provide documentation of that test result upon return to the workplace.
Employees not fully vaccinated for any reason must generally be required to wear a face covering when indoors and when occupying a vehicle with another person for work purposes. Protocol for face coverings should be outlined including a clear delineation of the types that are approved under the OSHA ETS, as well as an outline of the acceptable exceptions to the face covering requirement.
In addition to the workplace policies and procedures, the employer is also required to provide all employees with (1) the CDC document “Key Things to Know About COVID-19 Vaccines”; (2) information about protections against retaliation and discrimination; and (3) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Employees must be provided with a complete copy of the policy, including all applicable deadlines. OSHA directs that employees be trained on this policy and that it be enforced via the workplace disciplinary system, if necessary. OSHA has drafted a template policy to assist employers. However, this template requires employers to scrutinize and address almost every section of the template to create a policy that uniquely blends the statutory requirements with their own legitimate business needs and structure. We strongly encourage employers to work with qualified legal counsel to develop the written policy, training modules and protocols for implementation. According to OSHA’s website, the penalty for a serious violation is up to $13,653 per violation. The fine for a willful violation is up to $136,532 per violation.
A copy of the COVID-19 Mandatory Vaccination Policy Template prepared by OSHA is ATTACHED to this article.
On Friday, November 5, 2021, The Fifth Circuit Federal Court of Appeals issued a temporary stay of the vaccination mandate as it applies to employers with 100 or more employees, certain health care workers and federal contractors under their jurisdiction. In response to a petition brought by several states and private businesses, the court reasoned there may be "cause to believe there are grave statutory and constitutional issues with the Mandate." The court provided the government until 5 PM on Monday, November 8, 2021 to respond. The Justice Department issued a statement indicating that it remains confident in its legal authority to issue and enforce the mandate and will “vigorously” defend its position. We suspect this will be the first of many such challenges to the mandate. We will continue to provide updates that may impact the timing and application of the ETS. For now, we encourage employers to continue to educate themselves as to the requirements for compliance and to develop potential protocols for implementation.
To the extent you have any specific questions, or wish to have assistance in drafting and implementing a compliant procedure or training of your employees on the protocol once announced, please contact our Employment Law Group at 1-888-488-2638 or EmploymentLaw@c-wlaw.com.