On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its long-awaited guidance mandating that employers with 100 or more employees develop, implement and enforce a mandatory COVID-19 vaccination policy or require weekly testing for unvaccinated employees. However, lawsuits from several states and private businesses led to the 5th Circuit Court of Appeals issuing a temporary block of the rule.
Benefitfocus engaged attorney and Capitol Hill insider Chris Condeluci to clarify what employers will need to do if and when the rule stands.
Based on OSHA guidance, what will employers be required to do and when?
As mentioned, the guidance requires employers with at least 100 employees enforce a COVID-19 vaccine mandate for its employees. The guidance also confirms that employers may “opt out” of adopting a mandatory vaccine program, but to do so, employers with at least 100 employees MUST require unvaccinated employees to undergo weekly COVID testing and wear approved facial coverings in the workplace. Note, employers are permitted to adopt BOTH (1) a mandatory vaccine program, and also, (2) a program allowing those employees who refuse the COVID-19 vaccine to undergo weekly testing and wear approved facial coverings.
December 5 Looms Large
For purposes of adopting a mandatory vaccine program, employers MUST establish such a program by December 5 according to OSHA’s guidance.
In addition, by December 5, employers MUST develop a written policy (1) describing the mandatory vaccine program, and also, (2) explaining how employees must provide the employer with “proof of vaccination” so as to verify the vaccination status of each employee.
Furthermore, by December 5, employers MUST require employees who are NOT fully vaccinated to wear a facial covering when indoors or when occupying a vehicle with another person for work purposes (this would include an employee that isn’t fully vaccinated by December 5).
And, by December 5, employers must adopt a policy that requires their employees to immediately notify the employer if an employee tests positive for COVID or receives COVID diagnosis, and when notified, the employer must immediately remove this employee from the workplace.
What is the January 4 effective date?
For those employers who “opt out” of the mandatory vaccine program, these employers MUST – by January 4 – require their employees:
(1) to undergo weekly testing if these employees are in the workplace once a week, or
(2) to take a COVID test within seven (7) days before returning to the workplace if these employees are away from the workplace for a week or longer.
This same January 4 effective date applies if an employer adopts a mandatory vaccine program (effective December 5), but also chooses to allow those employees who refuse a vaccine shot to undergo weekly testing/wearing facial coverings.
Are any employees exempt from OSHA’s requirements?
Tele-Work and Working “Outdoors”
Importantly, for those employees who (1) are 100% tele-working (i.e., these employees are NOT reporting to a workplace where co-workers or customers are present) or (2) report to a workplace where NO other co-workers/customers are present, OSHA’s requirements do NOT apply. In other words, employers are NOT required to impose the vaccine and testing/facial covering mandates on these employees.
Also, employees who work “exclusively outdoors” are NOT subject to OSHA’s requirements. Here, the employee must work outdoors on all days and the employee CANNOT work indoors on some days and outdoors on other days. For example, employees who primarily work outdoors, but may on occasion be required to work in an office even one day in a particular week, are NOT exempt from the vaccine or testing/facial covering mandates. There is, however, a de minimis rule providing that if an employee’s use of indoor spaces is limited (i.e., using a multi-stall bathroom or an administrative office), the employee would remain exempt from OSHA’s requirements so long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).
OSHA’s guidance further explains that the employee’s work must truly occur “outdoors,” which does NOT include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.
Medical Issues and Reasonable Accommodations for Disabilities and Religious Beliefs
Note, all other employees (including full-time, part-time and seasonal workers) who are present at the workplace where other co-workers or customers are present will be required to get a COVID vaccine if their employer adopts a mandatory vaccine program, unless (1) receipt of the vaccine is medically contraindicated, (2) medical necessity requires a delay in vaccination, or (3) an employee is legally entitled to a reasonable accommodation under Federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
How will employers be required to verify employee vaccination status?
As noted above, by December 5, employers must determine the vaccination status of their employees (this requirement applies even if an employer “opts out” of the mandatory vaccine requirement and simply adopts a testing/facial covering program). Employers must make this determination by collecting (and maintaining) documentation from their employees of actual proof of vaccination status (e.g., a CDC vaccine card or other verifiable documentation from a health care provider).
However, in cases where an employee cannot produce such documentation, an employee may provide to the employer a written attestation of their vaccination status (1) noting that they lost or are unable to provide proof of vaccination even after tying to obtain a new copy of, for example, a vaccine card, and also, (2) agreeing (in writing) that their attestation is truthful and that if their attestation is inaccurate, they will be subject to criminal penalties.
Employers must maintain records of each employee’s vaccination status. Employers must provide information to an employee about their vaccination status upon the employee’s request, and employers must provide information to OSHA about any – or all – of their employees’ vaccination status upon OSHA’s request.
If employers offer the option for weekly COVID testing, what are the requirements?
Again, by January 4, employers MUST require all unvaccinated employees (1) to undergo weekly testing if these employees are in the workplace once a week or (2) to take a COVID test within seven (7) days before returning to the workplace if these employees are away from the workplace for a week or longer. This requirement also applies to employees who are exempt from getting a vaccine shot due to medical issues or reasonable accommodations for disabilities and religious beliefs, as well as (1) employees of employers who ONLY adopted a testing/facial covering program or (2) employees who refuse to get a vaccine shot under a mandatory vaccine program (assuming the employer allows these employees to undergo testing/wearing facial coverings instead).
OSHA’s guidance is explicit on what types of COVID tests are acceptable for these purposes. Specifically, employer may ONLY accept results from COVID tests that are:
(1) cleared, approved, or authorized by the FDA to detect a COVID infection,
(2) administered in by a health care professional, and
(3) not self-administered, unless the self-administered test is conducted in the presence of their employer or during an authorized telehealth visit.
OSHA’s guidance confirms that employers are NOT required to pay for their employees’ COVID tests (although State law and collective bargaining agreements are permitted to require employers to pay for COVID tests, if applicable). Employers must maintain records of each test result furnished to the employer by each employee.
How will OSHA enforce these requirements?
The guidance explains that OSHA will exercise enforcement discretion and forego inspections where employers have made a “good faith” effort to implement a mandatory vaccine program and have reached fully vaccinated status for the vast majority of their employees, which signals that if employers are actually trying to comply (i.e., an employer is undertaking a “good faith” effort to implement the mandate(s)), enforcement actions are not likely.
Biden Administration officials have also communicated that OSHA will ONLY investigate/audit employers if OSHA receives complaints about an employer’s non-compliance with the mandatory vaccine and testing/facial covering mandates, further signaling that enforcement will likely be limited.
However, this does NOT mean that a $13,653 penalty per violation will never be imposed. But, this does under-score that the main purpose for developing the vaccine and/or testing/facial covering mandates is “compliance” as opposed to hitting employers with monetary penalties.
What are some other considerations in OSHA’s guidance that employers will need to know if it does indeed go into effect?
- Paid Leave for Getting a Vaccine Shot and Recovery Afterwards: For those employers adopting a mandatory vaccine program, these employers MUST give their employees up to four (4) hours of “new” paid leave per vaccine dose. Employers CANNOT require employees to “use up” existing paid leave. Employers must also give their employees paid sick leave to recover from side effects from the vaccine doses. Unlike paid leave to get an actual vaccine shot, employers ARE permitted to require employees to use existing sick leave for recovery purposes (however, employers cannot require their employees to “go in the negative” and apply “unaccrued” sick leave to the recovery time). OSHA also indicates that a “reasonable” amount of time for sick leave to recover from side effects is two (2) days for each vaccine dose.
- Communicating Information to Employees: Employers must tell employees about OSHA’s new vaccine and testing/facial covering mandates. As noted above, employers must also provide to their employees a written policy describing the employer’s mandatory vaccine and/or testing/facial covering program(s), along with an explanation of the “benefits” of getting a COVID vaccine and the CDC’s “factsheet on vaccinations.”
- Defining the 100-employee Threshold: OSHA’s guidance does confirm that ALL employees, including full-time, part-time, or seasonal – as well as employees who are tele-working and NOT present at the workplace – MUST be counted for purposes of meeting the 100-employee threshold. However, OSHA’s guidance confirms that independent contractors and individuals who are placed at the employer’s workplace through a staffing agency are NOT counted for purposes of determining whether an employer employs 100 or more employees.