Editor’s note: Most of the information in this blog is valid, however, the most current information is available in a subsequent blog, titled, “And Just Like That! Fed OSHA Emergency Temporary Standards Are Back On.”
On November 4, 2021, the U.S. Occupational Health and Safety Administration (OSHA) submitted the long-awaited federal vaccination emergency temporary standard for all employers with 100 or more employees for publication in the Federal Register. This federal vaccination standard is a temporary, emergency rule that sets a national workplace safety standard for vaccination status and testing for employees who enter a workplace. This standard also encourages public comment on whether a permanent rule should be created and what provisions should be contained in such a rule. Although this emergency temporary standard sets a national standard, employers with California employees may be subject to a different rule. Read on for more details.
Emergency Temporary Standard Overview
Primarily, the emergency temporary standard requires employers with 100 or more employees to develop a mandatory vaccination policy or, alternatively, create a policy that requires all employees not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering in the workplace. For this standard, an employer is covered if they have 100 or more total employees across the U.S. at any time this standard is in effect. Part-time employees are included in the count but independent contractors are not.
Temporary employees placed with employers through a staffing agency are only counted by the staffing agency for these purposes, not by the client employers; however, if both the staffing agency and the client employer have 100 or more employees, then both entities are jointly responsible for compliance with this standard.
This emergency temporary standard applies to all industries and workplaces with the exception of those subject to the federal employee and federal contractor vaccination mandate executive orders, as well as healthcare facilities subject to a prior OSHA emergency temporary standard related to that industry. This federal vaccination standard also doesn’t apply to any employee who:
- Reports to a worksite where only that employee is present;
- Works from home; or
- Works exclusively outdoors.
Covered Employers’ Mandatory Vaccination Policy
A covered employer’s mandatory vaccination policy requires all employees to be fully vaccinated and new hires to be fully vaccinated as soon as practicable. Permissible exceptions to this policy are for those employees for whom a vaccination is medically contraindicated or a delay in vaccination is a medical necessity as well as for those who are legally entitled to a reasonable accommodation due to a disability or sincerely held religious belief. This policy must be in writing.
Employers can create a vaccination policy that allows for an employee to decline vaccination; however, the employee must test weekly for COVID-19 and wear a face covering in the workplace. Employers must ensure the COVID-19 test is: (1) cleared, approved or authorized, including in a Food and Drug Administration (FDA) emergency use authorization (EUA), to detect a current infection; (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Antibody tests don’t meet this definition. Employers aren’t required to pay for testing. Employers must maintain records of the weekly test results and may not permit employees subject to the testing rules to enter the workplace until the results are produced.
Employers must choose one of these two policy options and must create a written policy that the employer implements and enforces.
An employee is fully vaccinated if the employee is two weeks removed from the final dose in the vaccine series of a vaccine that is either FDA-approved (Pfizer-BioNTech), FDA-authorized for emergency use (Moderna or Johnson & Johnson), or authorized for emergency use by the World Health Organization (AstraZeneca); or if the employee is participating in an active U.S. clinical trial for vaccine efficacy where the employee is documented to have received the active vaccine and not a placebo.
To verify vaccination status, an employer must obtain vaccination status proof in one of the following forms:
- The immunization record from a health care provider or pharmacy;
- A copy of the U.S. Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Record card;
- A copy of medical records documenting the vaccination;
- A copy of immunization records from a public health, state or tribal immunization information system; or
- A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
The record should include the employee’s name, type of vaccine administered, dates of vaccination doses administered and provider who administered the vaccine. The employer must maintain a copy of the record, and digital copies are permissible as long as they have the information required and are legible.
If the employee has lost or is otherwise unable to produce one of the records above, this emergency temporary standard allows for an employee to submit a self-attestation as long as it meets several requirements:
- Is signed and dated by the employee with an acknowledgment that the employee may be subjected to criminal penalties for knowingly providing false information;
- Provides their vaccination status (fully or partially vaccinated); and
- Provides that the employee has lost or is otherwise unable to produce proof in one of the five methods described above.
If an employer has ascertained employee vaccination status prior to the standard’s effective date — which is currently expected to be November 5, 2021 — through another form of attestation or proof, and retained records of that ascertainment, the employer is exempt from the determination of vaccination requirements of this standard. The records an employer obtains through the verification process are confidential medical records.
Employers are required to provide reasonable, paid time off to obtain each dose of the vaccine series, up to four hours of pay at the employee’s regular rate of pay. All time spent travelling to and from the vaccination site, and time spent at the site filling out paperwork, waiting to receive the vaccine, receiving the vaccine and waiting at the site to ensure no adverse reactions take place are all covered as paid time. If the employee chooses to go during non-work hours, this standard doesn’t require payment.
Employers are also required to provide a “reasonable” amount of paid sick leave to recover from any side-effects of receiving the primary doses in a vaccine series. There is not a similar paid time cap like with obtaining a vaccination; however, employers are allowed to set a “reasonable” cap. OSHA does explain that it presumes that if the employer provides up to two days of paid sick leave per dose to recover from any side effects, the employer would be complying with this requirement.
Employers’ notification and exclusion requirements include requiring employees to immediately notify the employer of any positive COVID-19 test results, and then an employer must exclude the employee from the workplace until the employee meets the CDC’s guidance for returning to work after an infection or the employee is cleared by a medical provider.
Employers must also meet the following reporting requirements:
- Each work-related COVID-19 fatality within eight hours of the employer learning about the fatality; and
- Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
With exception of testing requirements, this emergency temporary standard is effective 30 days after its publication, which is scheduled to occur on November 5, 2021. The testing requirements take affect 60 days after publication.
What This Means for California
Although this emergency temporary standard sets a national standard, many states have their own state OSHA plan, including California. This means that these individual states are permitted to set their own rules as long as the rules provide for at least the same level of protections to employees required under the national standard. States with their own plan have 30 days from the publication of this emergency temporary standard to create their own standard that must remain in effect for as long as OSHA’s.
Employers who have employees working in states with a state plan, such as California, must wait for those states to issue their rule before beginning compliance efforts. Employers should be aware that states with their own plan may issue rules more protective of employees, such as requiring employers to pay for testing or providing for more paid time off related to obtaining the vaccine or recovering from the vaccine. Stay tuned to HRWatchdog for more updates.
Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert
The new Revised Cal/OSHA COVID-19 Workplace Rules: What Employers Need to Know white paper is now available for nonmembers to download. CalChamber members can access the white paper here. Not a member? See how CalChamber can help you.