OSHA’s New Rule on Mandatory COVID-19 Vaccination – Community News
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OSHA’s New Rule on Mandatory COVID-19 Vaccination

On November 5, 2021, the U.S. Occupational Safety and Health Administration released its projected temporary emergency standard for COVID-19 vaccination and testing (the “ETS”). Citing the “serious danger” the virus poses to unvaccinated workers in the workplace, the main core of the ETS is the requirement that covered employers must implement and enforce a policy that requires employees to be fully vaccinated against COVID by January -19 4, 2022 or to submit to weekly COVID-19 testing and wear a mask.

As expected, the ETS is currently the subject of numerous legal challenges, and a federal appeals court has – for the time being – issued an injunction preventing enforcement of the ETS until the legal issues are resolved.

Management summary

The ETS is one of several recent efforts by the Biden administration to push the government to require vaccination in the U.S., and builds on vaccine mandates that apply to federal employees, federal contractors, and healthcare and other recipients of vaccines. Medicare/Medicaid funding.

The ETS applies to private sector employers with more than 100 employees (including full-time and part-time employees), and to state and local government employers in the 22 states with OSHA-approved state plans. OSHA estimates that the ETS will affect nearly 85 million workers. Small businesses with fewer than 100 employees are not covered by the rule, although OSHA says it will consider whether smaller businesses should also be subject to a vaccine mandate in the future.

In addition to the “vaccination or testing” mandate, the ETS imposes a significant number of new documentation, reporting and paid leave rules on employers while the ETS remains in effect. Below is an overview of the main obligations of employers:

  • Develop a written policy that requires employees to be either fully vaccinated or subject to weekly COVID-19 testing and wearing a mask at work, with a few exceptions.

  • Determine the vaccination status of all employees by obtaining acceptable documentation of the vaccination certificate (e.g. a vaccination card) and maintain a record of the vaccination status of all employees.

  • Implement and begin enforcing the “vaccination or testing” mandate by January 4, 2021 (unless the nationwide residency remains in effect).

  • Employees who work entirely remotely, employees who work exclusively outside, and employees who do not work in a location where others are present are not required to be covered by the “vaccination or testing” policy.

  • Allow up to 4 hours of paid time for employees to receive the vaccination, and provide “reasonable” paid sick leave to recover from any side effects of the vaccine. (Employers may allow employees to use vacation or PTO for these purposes.)

  • Immediately exclude employees from the workplace if they have a positive COVID-19 test or diagnosis.

  • Provide employees with certain information, including what the ETS requires from employers, company policies, information about vaccine safety and efficacy (via an OSHA-approved notice prepared by the CDC), and information about criminal penalties for fraudulent statements and documentation.

  • Report work-related deaths from COVID-19 to OSHA within 8 hours and work-related hospitalizations within 24 hours.

OSHA has the authority to issue citations, and the penalties for non-compliance under the law are severe: $13,653 per violation, and up to $136,532 for intentional or repeated violations.

The ETS will remain in force for six months, after which it must be replaced by a final standard. However, OSHA says it will continue to monitor the pandemic and act to update the ETS if it determines that the serious threat posed by the virus no longer exists or if new information points to a change in the rule. In addition, under federal law, the public and businesses have the right to submit comments on the ETS to OSHA, including whether the ETS should become the final standard.

Compliance Deadlines – Temporarily interrupted by federal courts.

The ETS states that it must come into effect immediately, i.e. when it was issued on November 5, 2021. The ETS requires compliance with all of the above provisions by December 5, 2021, except for the actual implementation of the “vaccination or testing” policy. Under the rule, employers must apply and enforce the “vaccination or testing” policy from January 4, 2022.

However, on the same day the ETS was enacted, numerous legal objections to the ETS were filed in federal courts across the country. In one of those challenges, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide “stay” on Nov. 6, which is a court order that prevents the ETS from taking effect until the challenge is resolved in court.

So, is the ETS the law or not?

The “legal” answer is that as of today, the ETS has been stopped by the Fifth Circuit and cannot be enforced anywhere in the country. If that suspension is lifted, or if the ETS is eventually enforced, the ETS is in effect and can be enforced by OSHA. As those legal challenges make their way through the courts in the coming weeks or months, it’s essential for covered employers to keep a close eye on these proceedings.

The practical answer is more complicated and puts employers in a difficult position. The ETS has enough complexities and requires the creation of sufficient policies and procedures so that it cannot be implemented without advance planning in large organizations. This is especially the case for companies that need to determine the vaccination status of a large number of employees and/or deal with the logistical challenges necessary to have an effective weekly testing program. Perhaps most importantly, the penalties that can be imposed by OSHA for non-compliance can be significant.

For these reasons, a wait-and-see approach is probably unwise for many, if not most, employers. This means that at a minimum, employers must take the necessary steps to gather the required information and create the required policies and procedures so that they are prepared to implement them once the legal challenges have been decided.

Planning ahead: what should companies do to prepare?

Given the uncertainties about the status of the ETS in the courts and the potentially short timeframe in which compliance may be required, we encourage employers to take steps now to assess their situation and be prepared to comply if and when the ETS takes effect is becoming.

  1. Determine if your company or state or local government employer is covered by the ETS. Whether a company meets the 100-employee threshold is not always a straightforward analysis, such as when a group of separate but related businesses is under common management, or in the franchise context. In narrow cases, legal guidance is recommended before deciding that the ETS does not apply.

  2. Determine the vaccination status of your staff. Besides the fact that the ETS will require companies to maintain a roster of employees and their status, companies need time to get the required information/documentation from employees (which experience shows that this can take some diligent effort from HR) , and to understand what the practical considerations regarding their policies will be, such as how many employees might need to be tested, who can work remotely, etc.

  3. If weekly tests are needed, start planning how to perform those tests. It has proved quite challenging for many employers during the pandemic to conduct tests properly and in a timely manner (both onsite and offsite). When/if the ETS comes into effect, you can expect significant demand that may limit the ability of employers and employees to arrange for approved testing (the ETS sets specific requirements for the types of testing that are acceptable, and requires that any exceedance of the -counter test kit results are observed by the employer or a provider).

  4. Prepare a compliant “vaccination or testing” policy. OSHA offers a policy template, but a customized and more streamlined version may be a better answer for many employers. Your legal advisor should be consulted to ensure that the policy meets all the requirements of the ETS.

  5. Set up a communication strategy. The ETS imposes a number of requirements on employers to provide employees with certain notices and information, including information about what the ETS requires, company policies, information about the safety and efficacy of vaccines, and information about criminal penalties for fraudulent statements and documentation. In addition to the ETS requirements, there are also important employee relations considerations that employers may want to address. As you have no doubt seen, vaccine mandates are controversial and workers across the country have spoken out both for and against mandates.

  6. Prepare to process and document requests for vaccine mandate waivers (or develop that process if not already in place). For employees who are required to be vaccinated under the ETS, the rule allows employers to grant exemptions from vaccination to employees for whom a vaccine is medically contraindicated, for whom the medical necessity requires the postponement of vaccination, or those who are legally are entitled to reasonable accommodations under federal law because of a disability or a genuine religious belief. To do this compliantly and in a non-discriminatory manner, exemptions should be assessed on a case-by-case basis. You should plan how employees should apply for the waiver, what forms to create to facilitate that process, what documentation is needed to support the request, and who will review and decide whether to grant the waiver.

  7. Establish procedures to report work-related COVID-19 deaths and hospitalizations, as required by the ETS, and to maintain documentation required under the ETS.

Copyright © 2021 Womble Bond Dickinson (USA) LLP All rights reserved.National Law Review, Volume XI, Number 316

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