LEGISLATIVE UPDATE: FEDERAL OSHA VACCINE OR TEST EMERGENCY REGULATIONS

Nov 15

OSHA has issued an Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure that their workers are vaccinated or submitting to weekly COVID testing. The ETS is effective November 5, 2021, and employees have until January 4, 2021, to be fully vaccinated or begin testing weekly.

For more info, click here: https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard

The deadline to comply with all other provisions under the ETS is December 5, 2021.

The Fifth Circuit stepped into enjoin the mandate, citing “grave statutory and constitutional issues.” But if it survives judicial review, the ETS regulation will require most employers with 100 or more employees to meet a December 5 deadline to either (1) implement a mandatory vaccination policy that includes a vaccination status roster for all employees; or (2) create a policy allowing employees to choose to get a vaccination or wear a face-covering in the workplace and submit to weekly COVID-19 testing and reporting.

It is not yet known how California will handle the cost of testing as well as the time spent on obtaining vaccinations and testing. We expect Cal/OSHA will issue a revised ETS to address these issues in the coming weeks.

100 Employee Threshold

The ETS applies to all employers with 100 employees as of November 5, 2021 and all employers who reach 100 employees at any point when the ETS is in effect. The requirement stays in place even if your count dips below 100 thereafter. This includes part-time employees, temps (not including staffing agency employees), seasonal workers, minors, union employees, and remote work employees. Independent contractors are not included. For more info, click here: https://www.osha.gov/coronavirus/ets2/faqs

Employees Who Are Exempt From the Vaccination and Testing Program

Employees who do not report to a workplace where other individuals are present
Employees who work from home
Employees who work exclusively outdoors

Vaccination Mandate

The employer must support this testing by allowing a reasonable amount of time off for obtaining the vaccinations and up to 4 hours of paid time for each of the primary vaccinations (up to two), including travel time, at the employee’s regular rate of pay for this purpose. This leave cannot be offset by any other leave the employee has accrued. The employer must also provide reasonable time and paid sick leave to recover from side effects after any primary vaccination dose. Employers must continue to accommodate employees who provide a medical or religious exemption.

Proof of Vaccination

Employers must obtain and retain proof of vaccination. The following documentation is acceptable:

record of immunization
copy of COVID vaccination record card
copy of medical records documenting the vaccination
copy of immunization records from public records, or
copy of other official documentation that includes vaccination information
attestations are permissible only in limited circumstances (including if obtained before the ETS is enacted)

Weekly Testing Program

The ETS requires all covered employees to either be fully vaccinated OR commence weekly testing by January 4, 2022. Employees who do not provide proof of testing must be removed from the workplace until they provide a test result. This may be unpaid time off. If an employee receives a positive COVID test, the employer must not require another COVID test for 90 days following the date of the positive test or diagnosis.

The ETS defines “fully vaccinated” to mean two weeks after an individual’s second dose in a two-dose series, such as Pfizer or Moderna’s, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine. This also includes vaccinations approved by the U.S. Food and Drug Administration (FDA) and World Health Organization (WHO). Employers should familiarize themselves with vaccines approved for use internationally and as a combination series.

Recordkeeping

Records of COVID vaccination and testing must only be kept as long as ETS is in effect.

Sample Policy

OSHA has issued a sample policy. Until Cal/OSHA issues its own guidance, this should be a starting point only: https://www.osha.gov/sites/default/files/covid-19-ets2-sample-mandatory-vaccination-policy.docx

OSHA FAQs

More information can be found here: https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf

As always, please feel free to reach out to us with questions.

Medina McKelvey

Medina McKelvey’s mission is to make California businesses stronger. We want employers to walk away from any lawsuit, legal challenge, or compliance issue stronger, wiser, and better protected. We want to see your business thrive before, during, and after any legal matter. We are a full-service employment law firm that equips and empowers California businesses with high-impact legal solutions. We are known for being one of the most strategic law firms in California, as well as for our groundbreaking work defending and protecting businesses from wage and hour class and PAGA action lawsuits—the biggest legal risk currently facing California employers.

https://www.medinamckelvey.com