Emergency OSHA Standard Requires Employers of 100 or More to Implement a COVID Vaccination Policy
The Occupational Safety & Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS)[1], preempting related state and local laws, requiring employers with 100 or more employees to develop, implement, and enforce either:
a mandatory[2] COVID-19 vaccination policy; or
a policy requiring employees to choose to be either (a) vaccinated or (b) subject to regular COVID-19 testing and wear a face covering at work.
Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors are not covered; neither are workplaces where any employee provides healthcare services or healthcare support services when subject to the Emergency Temporary Standard for healthcare employers.[3] Also not covered are employees who do not report to a workplace where other individuals are present; those working from home; and those who work exclusively outdoors.[4]
The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements, including:
Requiring employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
Requiring employees to provide prompt notice if they test positive for COVID-19 or receive a COVID-19 diagnosis.[5]
Requiring employers to obtain acceptable proof of vaccination status from vaccinated employees, and maintain records of the vaccination status of each employee.[6]
Requiring employers to ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week), or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
Requiring employers to ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work.
The testing requirement for unvaccinated workers will begin after January 4th. Employers must be in compliance with all other requirements–such as providing paid time for employees to get vaccinated and requiring masks for unvaccinated workers—starting December 5th.
The Takeaway
Compliance with the new ETS is important because the standard gives OSHA broader authority to enforce COVID-related regulations and impose significant penalties for noncompliance. Every employer with 100 or more employees should contact counsel for assistance in compliance. The experienced employment defense attorneys at Campbell Litigation are ready to help your business adapt.
[1] OSHA ETS, Docket No. OSHA-2021-007, available at https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard, last visited November 4, 2021.
[2] Even under a mandatory policy, however, vaccination is not required for those with conflicting medical conditions, disability, or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
[3] Subpart U – 29 CFR § 1910.502.
[4] https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf, last visited November 4, 2021, at p. 2.
[5] Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria. See https://www.osha.gov/coronavirus/ets2/faqs.
[6] Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials available here.