REGULATORY RESOURCE: OSHA Vaccine Mandate

 

Update 11/17/21: OSHA Suspends Enforcement of COVID-19 Vaccine Mandate

OSHA:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA 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.

NGA: 

Today, the Occupational Safety and Health Administration (OSHA) released a notice that it was suspending implementation and enforcement of activities related to the COVID-19 vaccine mandate for businesses with 100 or more employees.

This action was in response to a Nov. 12 ruling from the 5th Circuit Court of Appeals granting a stay against OSHA regarding its Nov. 5 2021 COVID-19 Emergency Temporary Standard (ETS). The case, BTS Holdings, LLC vs the Occupational Safety and Health Administration, was brought by NGA member retailer Brandon Trosclair of Gonzales, La., and other parties. 

 

OSHA has issued a final emergency temporary standard (ETS) to implement President Biden’s vaccine mandate. Employees will be required to be fully vaccinated for COVID-19 or submit to weekly testing. Employers will be required to implement a policy that also includes, among other requirements: determining all employees’ vaccination status, providing support for employees to get vaccinated, and requiring masks for unvaccinated employees.

Links:

 

Who Must Comply?

The ETS covers companies with 100 or more employees. The 100 employee standard is counted firm- or corporate-wide, not by individual locations. Minors, seasonal and temporary workers, and part-time employees are counted toward the 100-employee threshold and are subject to the vaccine requirement.

Employees who work entirely remotely or outdoors are counted toward the 100-employee threshold, but these individuals are NOT subject to the vaccine requirement.

More information: Section 2 of OSHA's Frequently Asked Questions. (Provides answers about offsite workers, franchisors/franchisees, multi-employer worksites, unionized workplaces, and more.)

How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?

The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.

 

Effective Dates

The ETS is effective Nov. 5, 2021. To comply, employers must ensure provisions are addressed in the workplace by the following dates:

  • Dec. 5, 2021: All requirements (determine vaccination status, provide time off, implement masking, etc.) other than testing for employees who have not completed their entire primary vaccination dose(s)
  • Jan. 4, 2022: Employees who have not received all doses required for primary vaccination must begin weekly testing

 

What is required?

Employers must ensure that:

  • Employees receive the necessary shots to be fully vaccinated
  • Employees who are not fully vaccinated provide a verified negative test on a weekly basis. (The ETS does not require employers to pay for testing-related costs)
  • Employees who are not fully vaccinated wear a face covering when indoors
  • Employees who receive a positive test or are diagnosed with COVID-19 are removed from the workplace
  • Employees receive reasonable time during work hours, including up to 4 hours of paid time, to receive their vaccine doses.

 

Vaccine Verification

The following list includes the acceptable documentation for proof of vaccination:

  • The record of immunization from a health care provider or pharmacy
  • A copy of the U.S. COVID-19 Vaccination Record Card
  • A copy of medical records documenting the vaccination
  • A copy of immunization records from a public health, state, or tribal immunization information system
  • Or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

 

Exemptions to Employee Vaccine Mandate:

  • Those for whom a vaccine is medically contraindicated
  • Those for whom medical necessity requires a delay in vaccination
  • Those legally entitled to a reasonable accommodation under federal civil rights laws because of a disability or sincerely held religious beliefs that conflict with the vaccination requirement

 

An employer policy must be made available to employees and should include:

  • Requirements for COVID-19 vaccination
  • Applicable exclusions from the written policy
  • Information on determining an employee’s vaccination status and how this information will be collected
  • Paid time and sick leave for vaccination purposes
  • Notification of positive covid-19 tests and removal of COVID-19 positive employees from the workplace
  • Disciplinary action for employees who do not abide by the policy
  • Relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated)
  • Procedures for compliance and enforcement
  • Information to be provided to employees (see below)

The following information must be provided to employees:

  • Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS
  • The CDC document "Key Things to Know about COVID-19 Vaccines"
  • Information about protections against retaliation and discrimination (OSHA Fact Sheet - Workers' Rights)
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation (OSHA Fact Sheet - False Statements)

(FAQ: 3.C.)

 

Penalties

Companies that are inspected and cannot produce records showing compliance with the ETS can be fined up to $14,000 per infraction.

 

Pre-emption

The ETS pre-empts and replaces any state or local requirement that forbids an employer from mandating vaccination.

 

Legal challenges

Legal challenges are expected to be mounted against the vaccine mandate that may delay the implementation of the final rule. States have the legal grounds to institute vaccine mandates, but the federal government’s authority to mandate vaccination is unsettled by law. The rule’s fate may ultimately be decided by the Supreme Court.

 

More information from OSHA can be found here.