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OSHA Issues Emergency Nationwide Vaccine-or-Test Mandate for Private Businesses

November 5, 2021

By

Amy L. Miles
Member, Stoll Keenon Ogden PLLC
(502) 568-5751
amy.miles@skofirm.com

On Thursday, November 4th, the Biden administration announced a January 4th, 2022 deadline for large employers to ensure that their employees are either (1) fully vaccinated; or (2) wear a face covering at work and submit to weekly testing. The highly anticipated Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) is set for publication in the Federal Register on November 5th. Continue reading for a summary of the key provisions of the ETS.

Covered employers may comply with the ETS in one of two ways: (1) by requiring that all covered employees be fully vaccinated for Covid-19 (with exceptions for employees who qualify for a medical or religious exemption); or (2) by providing employees with the option to either provide proof of vaccination status or participate in at least once-weekly Covid-19 testing and wear a face near other individuals. Key provisions of the ETS are highlighted below:

Who is covered?

  • Private employers with 100 or more employees firm or company-wide
  • In states with OSHA-approved State Plans (including Kentucky and Indiana), state and local government employers with 100 or more employees
  • The ETS does not cover federal contractors and subcontractors or healthcare employers that participate in Medicare and Medicaid programs (these entities are subject to separate federal vaccination requirements)
  • Carve-out for certain employees of covered employers: The ETS does not apply to employees who do not report to a workplace where other individuals are present, employees while working from home, or employees who work exclusively outdoors.
  • Note: The text of the ETS states that if an employer has at least 100 workers as of the date of publication (Friday, November 5th), it must comply with the requirements. Employers must include in the employee count temporary workers, seasonal workers, minors, and employees who work at home or in the field and rarely come into the office.

What does the ETS require covered employers to do?

  • Employer Policy on Vaccination: Employers must develop, implement, and enforce a mandatory Covid-19 vaccination policy including a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions, with an exception for employers that instead adopt a policy requiring employees to elect to either get vaccinated or undergo regular Covid-19 testing and wear a face covering in most situations when at work near other individuals.
  • Determine and Document Employee Vaccination Status: Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Employer Support for Employee Vaccination: Employers must provide employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose (excludes booster doses), and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. The paid time off for side effects may run concurrently with existing sick time or generic “PTO” time typically used to cover absences due to illness, but employers may not require employees to use stand-alone vacation pay to cover side-effects.
  • Weekly Testing for Employees who are not Fully Vaccinated: Employers must ensure that employees who are not fully vaccinated for Covid-19 are tested at least weekly (if in the workplace at least once a week) or 7 days prior to returning to work (if away from the workplace a week or longer). The ETS does not require employers to pay for any costs associated with testing, however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.
  • Employee Notification to Employer of Positive Covid-19 Test and Immediate Removal: Employers must: (1) require employees to promptly provide notice of a positive Covid-19 test or diagnosis; (2) immediately remove any employee who tests positive or is diagnosed with Covid-19 from the workplace regardless of vaccination status; and (3) keep the employee out of the workplace until return to work criteria are met.
  • Face Coverings for Employees who are not Fully Vaccinated: Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, with certain limited exceptions. Employers may not prevent an employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard.
  • Provide Employees with Information: Employers must provide each employee with information about: (1) the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the benefits of being vaccinated; (3) protections against retaliation and discrimination; and (4) laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Reporting Requirements: Employers must report work-related Covid-19 fatalities to OSHA within 8 hours of learning about them, and in-patient Covid-19 hospitalizations within 24 hours of learning about the hospitalization.
  • Availability of Records: Employers must 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 must also make available to an employee or employee representative the aggregate number of fully-vaccinated employees at a workplace along with the total number of employees at that workplace.

When does it take effect?

  • The first compliance deadline for employers will be December 5th, 30 days after the ETS is published in the Federal Register. By this date, employers must ensure implementation of all of the ETS requirements except for testing for employees who have not completed their entire primary vaccination dose(s).
  • By January 4, 2022, employers must comply with the weekly testing requirement for employees who have not completed their entire primary vaccination dose(s).
  • These deadlines are subject to change due to pending legal challenges, subsequent OSHA actions, or both.

What are the penalties for violating the ETS?

  • The standard penalty for a single violation is $13,653, and the number would increase if there are multiple violations in a workplace.
  • The penalty for “willful” violations is much higher: $136,532.

Must Employers that operate in states with an OSHA-approved State Plan comply with the ETS?

  • Twenty-two states (including Kentucky and Indiana) operate OSHA-approved State Plans, which are OSHA-approved job safety and health programs operated by individuals states rather than federal OSHA.
  • The FAQs of the ETS clarify that State Plans must be at least as effective as the ETS in protecting workers from Covid-19 hazards. It is likely, pending legal challenges, that both Kentucky and Indiana will adopt the federal OSHA standards without further alteration.
  • OSHA’s position is that the new ETS preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

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Stoll Keenon Ogden’s Labor, Employment & Employee Benefits practice has a proven record of being trusted advisors and effective advocates. We help employers solve their problems through proactive counseling, employee training and, where possible, cost-efficient litigation, including alternative dispute resolution. We know the employment laws thoroughly, and we make it our goal to acquire a comprehensive knowledge of our clients and their business, so we can provide tailored solutions for each of their needs.

Please also be sure to consult the Stoll Keenon Ogden’s Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state and local governments in response to the Coronavirus pandemic.