LEGISLATIVE UPDATE: STAY ON NEW COVID EMERGENCY REGULATIONS IS LIFTED
The stay on the Emergency Temporary Standards (“ETS”) was dissolved on Friday and the ETS is now reinstated. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
https://www.osha.gov/coronavirus/ets2
To refresh your recollection, below is the original legislative update about the new ETS.
LEGISLATIVE UPDATE: FEDERAL OSHA VACCINE OR TEST EMERGENCY REGULATIONS
OSHA has issued an Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure their workers are vaccinated or submit to weekly COVID testing. The ETS is effective November 5, 2021, and employees have until January 4, 2022, to be fully vaccinated or begin testing weekly. For more information, click here:
The deadline to comply with all other provisions under the ETS is December 5, 2021.
The Fifth Circuit enjoined 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.
The DIR continues to update California’s FAQs here:
https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html
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. (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 prior to the ETS was enacted)
Weekly Testing Program
The ETS requires all covered employees to 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’s 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 take care to familiarize themselves with vaccines approved for use internationally and as a combination series.
For more information on acceptable methods of testing, see question 6.J. of the OSHA FAQs:
https://www.osha.gov/coronavirus/ets2/faqs
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.
