The Wait is Finally Over… Or is it?
The Emergency Temporary Standard (ETS) issued by OSHA for private-sector employers with at least 100 employees identifies the vaccination, testing and reporting requirements employers must follow for their employees. In addition to OSHA, the Centers for Medicare & Medicaid Services (CMS) also released requirements for health care workers to be fully vaccinated when working at facilities participating in Medicare and Medicaid.
Several states, following the release by OSHA, pushed back on government and private employer vaccine mandates through state legislation and lawsuits against the federal government. A federal appeals court had temporarily blocked the ETS mandate; then on November 15, 2021, the U.S. Court of Appeals for the Fifth Circuit reaffirmed its preliminary stay that blocked the mandate.
Further complicating the matter, there are currently 22 states that have OSHA approved State Plans regulating the private sector. Those states have 30 days to adopt the federal OSHA ETS plan or implement something similar that is as effective as the federal OSHA ETS. In addition to their own OSHA plans, some states have passed laws prohibiting or limiting employers from requiring vaccines, face coverings or testing. To find out if your state has its own plan, go to https://www.osha.gov/stateplans.
Recently, OSHA commented on its website on November 16, 2021, stating that while it remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation from November 12, 2021. During this litigation, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing ETS. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”
What Should Employers Do Now?
Despite the current OSHA announcement and the court challenges, companies should still evaluate their current readiness and begin preparing for a mandate. Some companies have decided to implement a company-wide policy and practice of requiring vaccines and testing despite the hold from OSHA. It might take some employers weeks of planning to comply with the new requirements, and if deadlines are not moved, employers that wait risk being out of compliance.
Keep in mind, the stay of the ETS provision did not halt enforcement of any of the other rules, such as the CMS, federal contractors mandate, state statutes or executive orders that may be in place. Therefore, employers could start by doing the following:
- Establish and implement a written policy on vaccinations, testing and face coverings
- Educate employees on the ETS requirements in the workplace, their protection against retaliation and discrimination and the laws that provide for criminal penalties for knowingly supplying false statements or documentation
- Determine the vaccination status of each employee
- Develop a policy and identify the impact of paid leave for vaccination and potential time off for recovery
- Establish OSHA reporting requirements
What to Consider
Below, we provide insightful resources and information to help you understand and consider the employer requirements under the mandate.
Requirements for Employers with more than 10 Employees
OSHA’s ETS requires employers to establish and maintain a log to record COVID-19 cases in their workforce. The employer is responsible for recording each positive COVID-19 case, regardless of whether the instance is connected to COVID-19 exposure at work. The log must be maintained and preserved while the ETS is in effect. To obtain a copy of the recording requirements and OSHA log, visit: https://www.osha.gov/sites/default/files/publications/OSHA4130.pdf.
Requirements for Employers with 100 or More Employees
The employee threshold is determined by counting employees in all locations within the U.S. regardless of vaccine status and where they work. This includes part-time and seasonal employees but not independent contractors. Employers with more than 100 employees must follow the below requirements:
- All employees must be vaccinated by January 4, 2022. Unvaccinated employees must produce a negative test at least on a weekly basis. Employers should take note that OSHA does not require employers to pay for the expense of testing and, therefore, the cost can be passed onto the employees. However, this could be subject to requirements of other laws, such as state law or when considered a “reasonable accommodation,” a part of a collective bargaining agreement or any other collectively negotiated agreements.
- Exemptions:
- Employees who work exclusively from home and
- Employees who work exclusively outdoors
- Exemptions:
- Effective December 5, 2021, employers are required to provide paid time off for employees to get their vaccination, and if needed, sick leave to recover from any side effects caused by the vaccine.
- Effective December 5, 2021, all unvaccinated employees must wear a face mask while in the workplace.
- Employers are required to maintain records of vaccination status, weekly testing and positive COVID cases.
NOTE: Any private employers of 100 or more employees with OSHA approved state plans are covered by the state occupational safety and health requirements.
Requirement for Health Care Workers
- All workers at health care facilities receiving federal funding and participating in Medicare or Medicaid must be fully vaccinated by January 4, 2022.
- This applies to employees, students, trainees and volunteers whether their positions are clinical or non-clinical.
- Covered facility types: hospitals, ambulatory surgical centers, dialysis facilities, home health agencies and long-term care facilities.
Federal Contractor Rule
- The deadline for the federal contractor vaccination mandate has been changed to align with the OSHA and CMS requirement of January 4, 2022.
OSHA Resources
To support the rollout of the ETS, OSHA is offering assistance to help employers implement the new requirements. Those resources include:
- A webinar
- Frequently Asked Questions
- Other Compliance Materials
All can be found at: https://www.osha.gov/coronavirus/ets2.
For more information about the vaccine mandates or how it may impact your organization, please contact our experts:
