OSHA Issues Emergency Temporary Standard on Large Employer Vaccination/Testing Mandate

President Biden previously announced new COVID-19 mitigation efforts focused largely on vaccination mandates, which directed the Occupational Safety and Health Administration ("OSHA") to issue a federal rule mandating COVID-19 vaccinations or weekly testing for workers at companies with 100 or more employees.

This morning, OSHA released the final rule that will be published in the Federal Register ("Emergency Temporary Standard" or "ETS").  This Client Alert summarizes the Emergency Temporary Standard and provides links to OSHA's guidance:

Covered employers:  The ETS applies to all private employers within OSHA's jurisdiction with 100 or more employees, firm- or corporate-wide, at any time the ETS is in effect.  The 100-employee count is a headcount, not a full-time equivalent calculation.  An employer must count all employees, including part-time employees and those that work remotely, to determine whether the employer meets the 100-employee threshold. 

Employees not covered:  Certain employees are NOT covered under the ETS, even if an employer is covered.  The requirements of the ETS do not apply to:

1. Employees who do not report to a workplace where other individuals are present;
2. Employees while working from home; and
3. Employees who work exclusively outdoors.
   

Mandatory vaccination or testing:  The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy.  Or alternatively, covered employers may adopt a policy requiring employees to choose to either be vaccinated or undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination.  These testing records must be maintained by the covered employer as medical records for the duration of the ETS.  Further, while over the counter tests from pharmacies are permitted to be used to satisfy the testing requirement for unvaccinated employees, the test cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Deadline:  There are two compliance deadlines for covered employers.  By December 5, 2021, covered employers must meet all requirements other than testing.  This primarily includes:

• Developing a policy (OSHA provides example policies for both (1) Mandatory Vaccination, and (2) Vaccination or Testing and Face Covering.);
• Determining the vaccination status of workers;
• Providing at least 4 hours of paid time off for workers to get vaccinated for each primary dose (Employers are not required to offer paid time off to employees who choose to receive the vaccine outside of their regular work hours.);
• Providing a reasonable amount of time and paid sick leave to recover from any side effects experienced following each primary dose (This can be in the form of an employee's already accrued sick leave, but if an employee has none, a reasonable amount must be provided.);
• Requiring employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
• Requiring unvaccinated individuals to wear masks in the workplace, subject to certain exceptions; and

Educating workers about the ETS, the covered employer's implementation of ETS, the vaccine (by providing the Centers for Disease Control and document “Key Things to Know About COVID-19 Vaccines”), non-discrimination requirements, and potential criminal penalties for knowingly supplying false statements or documentation to the covered employer or OSHA.

By January 4, 2022, covered employers must ensure that workers have their final vaccination dose -- either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson.  Otherwise, testing for unvaccinated workers must occur.  This includes ensuring that each employee who is not fully vaccinated and reports at least once every 7 days to a workplace where other individuals (e.g., coworkers, customers) are present: (A) is tested for COVID-19 at least once every 7 days; and (B) provides documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result.  Employees who have completed the primary vaccination series by January 4, 2022, do not have to be tested, even if they have not yet completed the 2-week waiting period to be "fully vaccinated."

Testing Costs:  The ETS does not require an employer to pay for any costs associated with weekly testing.  However, employer payment for testing may be required by other laws or a collective bargaining agreement.  For instance, if the testing is conducted in the middle of the work shift, compensation may be required under the Fair Labor Standards Act.

Further information provided by OSHA about the Emergency Temporary Standards can be found on their website, which includes an educational webinar, additional fact sheets, and FAQs.  If you have any further questions about the Emergency Temporary Standard, please contact a MacDonald Illig attorney.

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