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    Employment Law Alert – OSHA Issues Long-Awaited Rule Requiring Mandatory “Vaccinate or Test Weekly” Rule for Companies with 100 or More Employees

    By John M. Bredehoft, Robert J. Barry, Labor & Employment

     

    New Rule Issued
    Yesterday, November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”), requiring, except as noted below, all employers with 100 or more employees, including state and local government employers in Virginia, to develop and implement a policy requiring mandatory vaccination of all employees, or alternatively, to implement a vaccinate or weekly test-and-mask regimen. The ETS, which describes the risks of COVID-19 as presenting a “grave danger” to workers, was announced as forthcoming back in September and has been published in today’s Federal Register. While the new regulation takes effect immediately, covered employers will have 30 days to comply with most requirements of the ETS, and an additional 30 days will be permitted for compliance with the vaccination and testing requirements. Accordingly, vaccination and testing will be required no later than January 4, 2022

    OSHA estimates the new rule will cover more than 84 million American workers. The ETS does not apply, however, to (i) employers with respect to government contracts and therefore subject to the September 2021 requirements of Executive Order 14042 to be implemented through guidance provided by the President’s Safer Workplace Task Force, or (ii) certain medical employers who are subject to a new, separate, rule also issued yesterday by the Centers for Medicare and Medicaid Services. Those separate rules, discussed below, do not contain a “test and mask” option.  

    Vaccination is the Preferred Means of Compliance
    While the ETS permits covered employers to impose a vaccinate or weekly test-and-mask requirement, the new OSHA ETS repeatedly states that a universal vaccination requirement, with no periodic-testing opt-out, is “the preferred compliance option,” and is “strongly preferred.” Employers should consider carefully whether they wish to offer the “test-and-mask” option, or simply to mandate vaccination for all employees. Despite the recent availability of booster shots for some segments of the population, the rule states that an employee is “fully vaccinated” two weeks after the completion of the Johnson & Johnson one-shot or Pfizer or Moderna two-shot immunization course. Booster shots are not required by the ETS.

    The General Requirement/Individual Exemptions
    Covered employers who have 100 or more employees must develop, implement, and enforce a written policy requiring COVID-19 vaccination for all of their employees unless the employer opts to take the less protective route of permitting unvaccinated employees to come to work masked while providing weekly negative COVID-19 test results.

    Individualized exceptions to the vaccination requirement are available (i) if vaccination is medically determined to be too great a risk for the employee; (ii) if there is a medical reason to temporarily defer vaccination, or (iii) if the employee receives an exemption as a reasonable accommodation to comply with federal civil rights laws protecting those employees with a disability that prevents vaccination, or a sincerely held religious belief, practice or observance prohibiting vaccination.

    Employees do not need to comply with the requirement if they never report to a workplace where other people are present; if they work from home 100% of the time, or if they work “exclusively” outdoors. Construction of a building does not count as “outdoors,” and OSHA has signaled this exclusion will be construed narrowly. For example, while 90% of grounds keeping employees work outdoors “continually,” only nine percent work outdoors “exclusively.”

    What Companies Are Covered?
    To determine whether an employer meets the 100-employee threshold, a company must count all full-time and part-time employees, wherever in the United States they may work. A company with fifty worksites with only three part-time employees at each is covered; there is no “full-time-equivalent” analysis. On the other hand, true independent contractors are not covered. Employees hired from a staffing agency count towards the number of employees for the staffing agency, not towards the hiring company.

    Affiliated companies may be aggregated to determine if the 100-employee limit is met. OSHA states, “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted” towards the 100 employee limit.

    An employer that has 100 employees as of the November 5, 2021, effective date remains covered, even if its employee count drops below 100 subsequently. A company that has fewer than 100 employees now, but which reaches the 100-employee threshold, becomes subject to the ETS at that time.

    What Specific Requirements Are Imposed On Employers?

    1. Employers must establish, implement, and enforce a mandatory vaccination policy (or test-and-mask alternative), which is in writing and which is communicated to all employees. Specific notice requirements are set forth, including notification of the strong anti-retaliation provisions of the Occupational Safety and Health Act.
    2. Employers must require all employees to provide acceptable evidence of vaccination status. Acceptable evidence includes a copy of a medical record, a vaccine record from a health care provider or pharmacy, an official governmental record of vaccination, or a copy of the CDC vaccination card, Records must include the employee name, date of vaccination, and type of vaccine. If an employee’s records have been stolen or are otherwise unavailable, a written attestation is sufficient. An employer who already has obtained this information from employees is not required to obtain it again – unless the information was received orally, in which case a document indicating compliance must be provided.
    3. Each employer must keep a written roster of all employees and their vaccination status.  Both the roster and the evidence of vaccination (and records of testing, if testing is used as an alternative) are considered confidential medical records and must be kept in a separate protected file (which may be electronic). Employees have a right to see their own files.
    4. Any employee who tests positive for COVID-19 must be excluded from the workplace, presumably for the period and under the conditions then-recommended by the CDC. (If the positive test is an antigen test, the employee may choose to be retested with a nucleic acid amplification test or “NAAT,” which is more accurate. A negative NAAT allows the employee to return to work notwithstanding a positive antigen test.)
    5. Any employee who declines to provide timely, weekly, test results under a test-and-mask system must be excluded from the workplace (unless the delay is not attributable to the employee).
    6. If an employer implements a mandatory vaccination policy (with no test-and-mask option), any employee who refuses vaccination (except if a reasonable accommodation for a person with a disability or a religious reason has been approved) must be excluded from the workplace. OSHA estimates that no more than five percent of the workforce will qualify for disability- or religious-based exceptions.
    7. If an employer implements a vaccinate or test-and-mask policy, any employee who refuses vaccination and refuses to comply with the testing option must be excluded from the workplace,
    8. Any “work-related” COVID-19 fatality or in-patient hospitalization must be reported promptly to OSHA. Employers do have discretion in determining whether an event is “work-related.”
    9. Medical records maintained by the employer relating to the ETS must be kept until the rule is no longer in effect. The general OSHA rule of keeping medical records for thirty years does not apply to these records.
    10. Any employee who is not currently vaccinated must be given a reasonable amount of paid leave, up to four hours, to get vaccinated. (This is not retroactive.)
    11. A reasonable amount of paid leave must be provided if an employee has to stay home because of an adverse reaction to the vaccine. If an employee has accrued sick time or paid time off that is undifferentiated as to its use, this paid time can be charged to the employee’s account. But if the employee has no accrued leave, the employer must still give a reasonable amount of paid time off to recover from side effects. In most cases, says OSHA, this should not require more than two days off; severe allergic reactions may, however, require more paid time off for recovery.
    12. Employees who are fully vaccinated are not required by the ETS to mask at work (although state or local requirements such as Virginia’s Final Permanent Standard must still be given full effect). However, OSHA states that masking, even for the fully-vaccinated, is “strongly encouraged in a wide range of circumstances” at work, including visitor and customer contact.
    A word about testing and masking:
    OSHA manifests a clear and distinct preference for mandatory vaccination policies to be adopted by all covered employers. If an employer, however, chooses to allow its employees the option of remaining unvaccinated, each unvaccinated employee must wear a two-layer mask at all times at work (other than when actually ingesting food) and must be tested weekly. A test must be taken no less frequently than every seven days, and results must be submitted to the employer in writing no less frequently than every seven days. Employers are not required to pay for employee masks.

    The ETS does not require employers to pay for tests. However, OSHA makes clear that separate state laws or union contract requirements could place the burden of paying for tests upon the employer. Under Virginia law, any medical testing required by an employer must be paid for by the employer. The Virginia Department of Labor and Industry, contacted by us for this article, has reiterated its position that any testing done under a “mask and test” system pursuant to the ETS must be paid for by the employer, not the employee. Under North Carolina law, employees can be required to pay for the cost of testing, but applicants for employment cannot be forced to pay for pre-employment testing.  

    A fairly broad array of tests will be acceptable under the ETS, including antigen tests. Any FDA-approved test may be used, administered at point-of-care or in a pharmacy. However, a test that is both self-administered by the employee and self-evaluated by the employee (such as a number of over-the-counter “home tests”) is not acceptable. While the ETS allows a self-administered test if it is done in the presence of an employer representative who then reads the test, employers should exercise great care in assuring the safety, quality control, and documentation of such “in house” tests. Only persons provided with proper personal protective equipment, well trained to evaluate the test results, and well-positioned to apply independent judgment should be considered for in-house testing. 

    For Further Assistance:
    Our Labor and Employment Law Section has been working with our clients daily on COVID-19 issues, including compliance with law and regulation and strategies for mitigation, since March 2020. We have developed model policies, forms, and procedures that can be adapted for the needs of our individual clients. Please feel free to contact us for prompt assistance at any time.


    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2021.