The Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) mandating all companies with 100 employees or more to develop and start implementing COVID-19 vaccination programs, including a mask mandate for all unvaccinated employees by December 5, 2021. Moreover, covered businesses must necessitate weekly testing for unvaccinated personnel by January 4, 2022.
The ETS was announced on November 4, 2021. The objective of this article is to summarize the 490-page emergency vaccine mandate. Please note that this document is for information purposes only and the content presented within should be confirmed for accuracy before adopting any element of this document.
Companies/Employers Subject to the Mandate
Companies/employers with at least 100 employees are subject to the ETS. The 100-employee threshold applies at all times when the Emergency Temporary Standard (ETS) is in effect. Remember, independent contractors with 100 employees or more are not categorized as covered employers.
Employers/companies are excluded from the ETS coverage if:
- An OSHA-issued special ETS for healthcare employers covers them
- They are government contractors subject to the White House Safer Federal Workforce COVID-19 Federal Contractor Mandate
Employees Subject to the Mandate
The ETS applies to all workers who work for covered employers, unless:
- The employee who works solely outside
- The employee completes all of his or her work from home
- The employee doesn’t come to work in an area where there are other individuals
Employees working from home are not exempt from the ETS’s coverage.
Vaccination Policy for Covered Employers
For implementing a vaccination policy, covered employers are provided with two choices under the ETS:
Employers with covered personnel may develop and enforce a policy requiring them to be completely vaccinated.
Alternatively, covered employers may develop and enforce a policy permitting employees to choose between vaccination, weekly testing, and wearing a facial covering at work.
Option two’s testing requirement is not necessary until January 4, 2022. All the remaining obligations, such as masking and vaccination requirements for unvaccinated personnel, should be enacted and enforced by December 5, 2021.
Exemptions to the Vaccine Mandate
Employees may be excluded from the vaccination obligation if they have valid medical reasons, a disability, or a deeply held religious belief, practice, or observance that contradicts the requirement.
Employees eligible for a reasonable accommodation due to a disability or religious exemption may be granted one. The face-covering requirement may be subject to the same exclusions and limitations as the appropriate accommodation’s requirement.
How Can Employers Check Vaccination Status?
It’s a must for covered employees to determine and keep track of their workers’ vaccination records. A covered employee may provide a copy of the following:
- COVID-19 vaccination card from the CDC
- Medical records that show employee has been vaccinated
- Public health authority’s vaccination records
- Other “official document” showing the date, location, and healthcare practitioner who gave the vaccine
When it comes to keeping track of employee vaccination data, employers should retain a list of all employees and their vaccination status. It’s also essential to keep vaccine records private at all times.
How Can Covered Employers Support Vaccination?
In order to support vaccination, covered employers must do the following:
- Allow personnel up to 4 hours of paid time to get the vaccine. The pay should be equal to the employee’s usual rate, and it must include the amount of time an employee spends commuting to and from the vaccination place.
- Allow employees to use paid sick leave to overcome adverse vaccination effects.
What’s there for Unvaccinated Employees?
Unvaccinated employees must undergo COVID-19 testing every seven days at the very least. If an employee doesn’t come to work for seven days in a row, he or she must be examined for COVID-19 within seven days before returning to work. Employers are not responsible for testing fees unless a federal, state, municipal law, or collective bargaining agreement requires payment.
Covered companies may utilize over-the-counter “rapid” tests, but they cannot enable employees to administer the test and interpret the findings independently. The testing procedure must be observed by either an employer representative or an approved telehealth provider.
If an employee chooses not to be tested or not submit a test result, the employer must keep the employee out of the workplace until he or she provides a negative test result.
The employer must document all test results provided by employees. Like vaccination records, the test results are deemed confidential employee medical records.
Face Covering Regulations
When working in an indoor environment, employees who have not been vaccinated must additionally wear a facial covering. The following are exceptions to this rule:
- If it is required to remove the facial cover for identification
- When an employee is the only person in an enclosed room
- When a person eats or drinks in the office for a short amount of time
- When the working conditions make wearing a facial covering almost impossible
- When the working environment poses a more significant risk than wearing a face mask
According to the ETS, employees can use a respirator instead of a face mask, and employers can’t stop them from using one. Also, employers are not obliged to pay for employees’ respirators and face masks.
What Should Employees and Employers do if COVID-19 Tests Come Positive?
When an employee tests positive for COVID-19, the ETS wants him or her to notify the employer right away. This responsibility applies to both kinds of employees – those who have been vaccinated and those who haven’t.
When the employer learns about the same, immediate action should be taken. The employee must be removed from the workplace until he or she tests negative for COVID-19 and follows the latest CDC isolation guidelines.
The ETS doesn’t allow for paid leave if an employee is dismissed from work because of a positive COVID-19 diagnosis or test result. Employer policy, applicable legislation, or a collective bargaining agreement may all mandate paid leave.
An employer must make sure to notify OSHA of any work-related COVID-19 hospitalizations and fatalities. Hospitalizations must be reported within 24 hours, while deaths must be reported within eight hours.
Employers’ Obligation to Provide Information
When employees or their representatives ask for records or/and information, ETS requires employers to deliver the following documents or information in writing by the next working day:
- An employee’s test result or vaccination document for the employee or his/her designated representative
- The total number of employees in the company and how many of them are fully vaccinated
Employers must also furnish OSHA with their documented vaccination and testing/masking policy, as well as the total number of fully vaccinated personnel, within four business hours of receiving the request. Companies should also provide OSHA with additional documents that they are obliged to keep under the ETS by the next working day.
Right now, this mandate from OSHA is not being enforced on companies with 100 employees or more. However, employers must keep themselves updated on any progress made on this mandate.
This mandate could go into effect on January 4, 2022. It means employers must make substantial modifications to their operational infrastructure by then. So, it’s better to track the mandate’s progress and prepare the required infrastructure. It will save hassles and a lot of money in operating costs in the long term.