On November 4, 2021, the Occupational Safety and Health and Administration (OSHA) issued the long-awaited Emergency Temporary Standard (ETS)rule for employers with 100 or more workers, including both full-time and part-time, to require COVID vaccines.
The ETS will be published on November 5, 2021 and goes into effect on December 5, 2021. Employers will have until January 4, 2022, to ensure their workers are either fully vaccinated or subject to weekly testing and mask wearing. The ETS will remain in effect for six months and is the current proposal for a permanent standard. Please find the key provisions below.
WHO IS A COVERED EMPLOYER?
The ETS applies to employers with a total of 100 or more employees at any time the ETS is in effect. In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the company total, but independent contractors do not. For enforcement purposes, traditional joint employer principles would apply where both employers are covered by the ETS
PROOF OF VACCINE STATUS
The ETS requires employers to obtain proof of vaccination through the following means:
- record of immunization from a healthcare provider or pharmacy; or
- a copy of the COVID-19 Vaccination Record Card; or
- a copy of medical records documenting the vaccination; or
- a copy of immunization records from a public health, state, or tribal immunization information system; or
- a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering the vaccine.
PAID TIME OFF
The employer must provide up to 4 hours paid time, including travel time, at the employee’s regular rate of pay to each employee for each of their primary vaccination series dose(s). The employer must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose. Employees may be required to use existing sick or PTO leave.
Employers are not required to provide paid time off under the ETS to any employee who is removed from the workplace due to a positive test. State law and collective bargaining agreements may provide otherwise.
The employer must establish, implement, and enforce, in a language and at a literacy level the employee understands, a written mandatory vaccination policy that requires each employee to be fully vaccinated against COVID-19. Employers are exempt from this requirement if they have established a written policy requiring weekly testing, as well as mandatory mask wearing for unvaccinated employees.
Employers must provide employees with this CDC document: “Key Things to Know About COVID-19 Vaccines,” also available by typing https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/keythingstoknow.html in your browser. This document covers COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated.
Employers are required to determine the vaccination status of each employee. Employers must maintain a record of the COVID-19 vaccination status, proof of vaccination, and copies of employee COVID-19 test results, and the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Employers must keep a record of each weekly test result of unvaccinated employees. The test results are employee medical records covered by OSHA’s Access to Medical Records standard. The records must be kept while the ETS is in effect.
All unvaccinated employees who report to the workplace must be tested at least once every seven days. Employees who are working remotely must be tested within seven days of reporting to the workplace. If an employee does not produce a test or, alternatively, tests positive, the employee is not permitted in the workplace. Employers are not required to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise in some cases.
Acceptable COVID-19 tests are tests that are cleared, approved, or authorized (including Emergency Use Authorization) by the FDA and that are administered in accordance with authorized instructions. Employers must ensure that the test is not both self-administered and self-read, unless observed by the employer or other authorized telehealth proctor
Unvaccinated workers will be required to wear a mask while indoors or riding in a vehicle with a colleague for work purposes beginning on December 5, 2021, with limited exceptions. Employers are not required to provide face coverings.
OSHA does not require compliance with any provision of the ETS until 30 days after it becomes effective. Businesses that do not comply could be fined $14,000 per infraction, and hospitals could lose access to Medicare and Medicaid dollars.
The ETS rule is being imposed through a rarely used process that has a history of being challenged. We fully expect challenges to the vaccine mandate and will keep you apprised of any updates. Our team at MBA will provide further guidance in the coming days. If you have any questions or would like assistance complying with the ETS, please contact an HR Consultant at (727) 563-1500.
A link the OSHA’s awaited Emergency Temporary Standard Frequently Asked Questions may be found here.
To read OSHA’s Final Rule of vaccination mandate COVID-19 in the Workplace in its entirety, link here.