On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) will publish an “emergency temporary standard” requiring employers with 100 or more employees to mandate employees be fully vaccinated or undergo weekly testing for COVID-19 and wear a face covering in many work settings (the “OSHA Standard”). Many aspects of the OSHA Standard require attention by employers. The Goodwin Employment practice will be issuing a comprehensive client alert concerning the OSHA Standard and specifically what employers need to do to comply. In the meantime, the following are answers to the top ten questions that employers have had in anticipation of the issuance of the OSHA Standard:
1. When will the OSHA Standard take effect?
Covered employers will need to comply with most aspects of the OSHA Standard by December 5, 2021. The requirement that employees who are not fully vaccinated ( i.e., two weeks have passed after completing primary vaccination with an FDA approved vaccine) be subject to weekly testing, in most cases, will go into effect on January 4, 2022.
2. What employers and workplaces will be subject to the OSHA Standard?
Any employer with at least 100 employees will be a covered employer for purposes of the OSHA Standard. However, otherwise covered employers will not be subject to the OSHA Standard with respect to (1) any workplaces covered by the federal contractor and subcontractor requirements, which are set forth in FAQs issued by the Safer Federal Workforce Task Force, and (2) settings where employees provide healthcare services or healthcare support services.
3. Will the OSHA Standard apply to all employees of covered employers?
No. The requirements of the OSHA Standard do not apply to employees of covered employers (1) if they do not report to a workplace where other individuals are present, including co-workers or customers; (2) while they work from home; or (3) if they work exclusively outdoors.
4. What will covered employers need to do by December 5, 2021?
Covered employers will need to develop and issue (1) a written mandatory vaccination policy; or (2) a policy that allows any employee not subject to a mandatory vaccination policy to either be fully vaccinated or provide proof of regular testing and wear a face covering in accordance with the OSHA Standard. They will also need to issue a notice to employees concerning the OSHA Standard requirements, the employer’s policy, CDC information concerning the efficacy, safety and benefits of vaccination and the employees’ rights under the Occupational Safety and Health Act.
Covered employers will also need to determine employees’ vaccination status and maintain a roster of each employee’s status. Employees will be required to provide a COVID-19 vaccination record card or other official record of vaccination. Self-attestation of vaccination will not be sufficient, unless it not only attests to vaccination, but also explains that the employee cannot provide proof (e.g., due to the loss of the record) and includes a certification that the information is true and accurate and acknowledges that a knowingly false statement may subject the employee to criminal penalties. Such information must be treated as a confidential medical record and maintained in accordance with certain OSHA recordkeeping requirements.
5. May employees take time off from work to be vaccinated?
Yes. Employees will be entitled to take a “reasonable amount of time” off from work to be vaccinated. They will be entitled to receive pay for up to four hours, including travel time, for this purpose. Employers must also provide reasonable time and paid sick leave to employees to recover from side effects of a vaccination.
6. What will be the basic testing requirements for employees who are not fully vaccinated?
Employees who are not fully vaccinated who report to a workplace where other individuals are present at least once every seven days will need to be tested at least once every seven days and provide documentation of the results to the employer within seven days of their most recent delivery of test results. An employee who is not fully vaccinated and who does not report to a workplace for seven or more days must be tested within seven days prior to returning to the workplace and must provide documentation of a negative test upon return.
To qualify, tests must be approved by the U.S. Food and Drug Administration (“FDA”) to detect current infection, such as viral tests. If a test is self-administered and the results are self-read by the employee, the test will not qualify, unless observed by the employer or an authorized telehealth proctor.
Employers are not required to pay for the costs of testing, unless otherwise required by laws, regulations or collective bargaining agreements or other collectively negotiated agreements.
Employees who test positive for COVID-19 or are otherwise diagnosed as having COVID-19 by a licensed healthcare professional may not be required by an employer to undergo the weekly testing requirement applicable to employees who are not fully vaccinated for 90 days from the date of the positive test or diagnosis.
Employers must maintain a record of each test result provided by each employee, which must be treated as a confidential medical record.
7. Will employees who are not fully vaccinated be subject to other requirements?
Yes. When working indoors or when occupying a vehicle with another person for work purposes, an employee who is not fully vaccinated must generally wear a compliant face covering, qualified respirator (e.g., an N95 mask) or FDA-qualified medical procedure mask. There are some exceptions, including when an employee is alone in a closed room with floor to ceiling walls.
8. Will employees who qualify for a religious or disability-based accommodation from mandatory vaccination be exempt from the weekly testing and/or masking requirements?
No. While such employees may be exempt from an employer vaccination mandate, they will not be exempt from the weekly testing and masking standards. However, the OSHA Standard recognizes that if a worker cannot wear a face covering because of a disability or a sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.
9. Must employers provide a testing option to employees who are not fully vaccinated?
No. The OSHA Standard is a minimum standard. Employers may choose to require all employees to be vaccinated, subject to religious or disability-based accommodation requirements.
10. Will employees be entitled to receive information about workplace vaccination levels?
Yes. If so requested by an employee, a covered employer must, by the end of the following business day, provide the employee with (1) the number of fully vaccinated employees in the workplace and (2) the total number of employees in the workplace.
The Goodwin Employment practice team will supplement this client alert with additional information and observations about the OSHA Standard in the near future. In the meantime, Goodwin’s employment lawyers are ready to provide assistance to employers on their preparations to comply with the OSHA Standard.