On November 5, 2021, the Occupational Safety and Hazard Administration issued the Emergency Temporary Standards (“ETS”) for the Vaccination/Testing Mandate that applies to most employers with 100 or more employees. This blog is a general overview of the requirements that are contained in the ETS.
It is worth noting that over the weekend, the ETS was challenged and a federal appeals court temporarily put a pause on the mandate. While the ETS is temporarily on pause, prudent employers will familiarize themselves with the ETS so that they are prepared. Employers have 30 days to get into compliance with the ETS and should plan as if the ETS will be in effect on December 4, 2021.
Intention of the ETS
According to OSHA, the purpose of the ETS is to address the minimum vaccination and testing requirements for the workplace. OSHA makes a big statement by explicitly stating that the intent of the regulation is to, “preempt inconsistent state and local requirements relating to [vaccination, testing and masking].” OSHA is clear that the ETS is merely a minimum. The regulations do NOT prevent employers from implementing additional measures for their workforce.
What Employers are Covered by the ETS?
Employers with 100 or more employees at any time are covered by the ETS. Now, as we know OSHA issued separate standards for healthcare workers and federal contractors/sub-contractors. This ETS applies to “everyone else.” (NOTE: This blog applies to non-healthcare business and non-government contractors.)
Check out my last blog to figure out how to calculate whether a business has 100 employees. If a business has 100 employees, then they are a “Covered Employer.” However, as discussed below, an individual who works for a Covered Employer may not have to comply with the vaccination/testing mandate. (NOTE: As mentioned above, employers may implement additional measures above and beyond the ETS.)
Who Does NOT Have to Follow the ETS?
The ETS does not apply to the following employees:
- Employees who do not report to a workplace where other individuals such as coworkers or customers are present;
- Employees who work from home;
- Employees who work exclusively outdoors. (See the previous blog for the definition of “exclusively outdoors.”)
The ETS requires all Covered Employers (100 or more employees) to establish, implement and enforce a written Mandatory Vaccination Policy or implement and enforce a Face Covering/Testing Policy. Let’s start with the Mandatory Vaccination Policy…
Mandatory Vaccination Policy
This is a policy requiring each employee to be vaccinated. In order to meet this definition, the policy must require the vaccination of all employees, including new employees as soon as practicable.
Now, the regulations carve out the usual exceptions for those (1) whom a vaccine would be medically contraindicated, (2) whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to a reasonable accommodation due to a disability or sincerely held religious belief. Employers should consult with counsel as they relate to these exceptions.
Testing and Face Covering Policy
In the alternative, a Covered Employer may implement a written policy allowing any employee to choose to either be (1) Fully-Vaccinated (see above section) or (2) provide proof of regular testing for COVID-19 and wear a face covering.
A few things:
- Fully Vaccinated still means 2 weeks after the second shot of a two-dose vaccine series, or 2 weeks after a one-shot vaccine (ie- Johnson and Johnson).
- It must be noted that this policy must be written and circulated.
- FACE COVERING has a specific definition under the ETS. A Face Covering must:
- Completely cover the nose and mouth;
- Be made of 2 or more layers of breathable fabric that is tightly woven;
- Secured to the head with ties, ear loops or elastic bands;
- Fit snugly over the nose, mouth and chin with no large gaps on the outside of the face; and
- Be made of solid material without slits or holes.
This is different from the regular one face mask. Employees may need to wear two face masks in order to be compliant with OSHA.
How Must an Employer Determine an Employee’s Vaccination Status?
An employer is required to determine the vaccination status of each employee. Employees must submit proof of vaccination. OSHA provides five (5) acceptable forms of proof:
- Record of Immunization from Health Care Provider/Pharmacy;
- A copy of COVID-19 Vaccination Card;
- A copy of medical records;
- A copy of immunization records;
- A copy of any other official documentation that contains the type of vaccination administered, dates administered, and name of the health care provider administering the vaccine;
What Happens When an Employee Cannot Produce Proof of Vaccination?
When an employee cannot produce acceptable proof of vaccination, then the employee must produce a signed and dated statement. The employee must attest that: (1) they are vaccinated; (2) that they have lost and are otherwise unable to produce proof of vaccination; and (3) the certification language.
The certification language is as follows:
I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.
Additionally, the notes to the ETS suggest that the employee should to the best of their recollection identify (1) the type of vaccine administered, and (2) the name of the Health Care Provider that administered same.
With all that being said, if an employee cannot properly attest to vaccination status or produce proof of vaccination, then the employer must treat that individual as not fully-vaccinated.
Employer’s Duty to Maintain Records
The ETS requires all employers to maintain a record of each employee’s vaccination status in the form of a roster. Even more, these records are considered medical records and must be maintained in accordance with OSHA Sec. 1910.1020.
Employer’s Duty to Support Employee Vaccination
TIME FOR VACCINATION
Employers are required to support the employees when they are getting vaccinated. Employers must:
- Provide a reasonable amount of time to each employee for each of their primary vaccination doses; and
- Provide up to 4 hours of PTO including travel time, at the employee’s regular rate of pay.
NOTE: OSHA is clear that employers cannot require employees to use PTO when getting vaccinated.
TIME FOR RECOVERY
Employers are also required to provide reasonable time and Paid Sick Leave for employees recovering from any side effects from receiving any primary vaccination dose. Now, here, OSHA allows for employers to require employees to use any accrued Paid Sick Leave. With that being said, OSHA is clear that, “employer[s] cannot require an employee to go into the negative for paid sick leave if the employee does not have accrued paid sick leave when they need to recover from side effects experienced following a primary vaccination dose.”
Employee’s Who are Not Fully-Vaccinated: COVID-19 Testing
When there are employees who are not Fully-Vaccinated, the employer must ensure that each unvaccinated employee follows the specific testing protocol.
EMPLOYEES WHO REPORT TO A WORKPLACE ONCE EVERY 7 DAYS
An employee who reports to a workplace where other individuals such as co-workers or customers are present, (1) must be tested for COVID-19 at least once every 7 days; and (2) must provide 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.
Now, when an employee does not report to a workplace where other individuals such as co-workers or customers are present (1) must be tested for COVID-10 within 7 days prior to returning to the workplace; and (2) must provide documentation of that test result to the employer upon return to the workplace.
NOTE: “Workplace” is defined as a physical location where the employer’s work or operations are performed. It does NOT include an employee’s residence.
EMPLOYEES WHO DO NOT PROVIDE DOCUMENTATION OF COVID TEST
When an employee does not provide documentation of COVID-19 test results, then the employer must keep that employee removed from the workplace until the employee provides a test result.
WHAT DOES THE EMPLOYER HAVE TO PAY FOR?
The ETS explains that the regulation does not require the employer to pay for costs associated with testing. Although, this may be required by other laws. (SEE previous post on requirements of the Fair Labor Standards Act.) Briefly, in Pennsylvania, employers must pay employees for the time spent obtaining a COVID-19 test. Prudent employers should consult with counsel regarding the local wage and hour laws as they relate to COVID testing.
WHEN AN EMPLOYEE HAS A POSITIVE COVID-19 TEST
When an employee has a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed HCP, then the employer MUST NOT REQUIRE that the employee undergo COVID-19 testing as required under the regulations, for 90 days following the date of the positive test.
The employer must maintain a record of each test result provided by each employee. As explained above, these test results are deemed medical records and must be maintained in accordance with Sec. 1910.1020.
When an Employee Has a Positive COVID-19 Test
When an employee has a Positive COVID-19 Test, all employers must:
- Require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; and
- Immediately remove the employee from the workplace.
- The employee must remain out of the workplace until they: (1) receive a negative test result, (2) meets the CDC’s criteria for ending isolation, or (3) receives a recommendation to Return to Work from a licensed Healthcare Provider.
NOTE: The ETS does not require the employers to provide Paid Time Off for employees who contract COVID-19. Although, the regulations caution employers to beware of local laws.
What About Employees Who are Not Fully-Vaccinated?
Employees who are not Fully-Vaccinated must wear a Face Covering (see above definition), when indoors and when occupying a vehicle with another person for work purposes, except: (1) when they are alone in a room with floor to ceiling walls and a closed door, (2) for a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirement, (3) when the employee is wearing a respirator or Face Mask.
NOTE: A Face Mask is different from a Face Covering. A Face Mask is a “surgical, medical procedure, dental, or isolation mask that is FDA-cleared, authorized by an FDA Emergency Use Authorization or offered or distributed as described in an FDA enforcement policy.”
WHO PAYS FOR WHAT?
The notes explain that the employers are not required to pay for any costs associated with the Face Coverings. However, as always, employers must check to confirm whether employers are required to front the costs associated with Face Coverings.
Employer’s Duty to Notify the Employees
The ETS requires Covered Employers to inform the employees of the requirements of the ETS. There must be a written policy in place that includes five (5) key requirements:
- Policies and Procedures as they relate to COVID
- Information relating to the efficacy of the COVID-19 vaccine;
- Prohibition of discriminating against employees for reporting a workplace/injury;
- Prohibition against retaliation for filing an OCC Health Complaint;
- Outlining the criminal penalty for knowingly supplying false statements or documentation.
Prudent employers will become well versed in this mandate, and prepare the required Policies under the regulations. Businesses should consult with counsel with any questions or concerns.
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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