Written by S. Whitney Rahman, Esquire

On November 5, 2021, the Department of Labor published its anticipated emergency OSHA standard for mandatory vaccinations for employers with more than 100 employees (“the Standard”).  It establishes minimum requirements for vaccination, verification, face covering, and testing.

Coverage

The Standard applies to all employers who have a total of 100 or more employees for any time the Standard is in effect, but specifically exempts:  (1) health care services (including health care support services) subject to the requirements of 29 C.F.R. § 1910.502; (2) employers subject to federal contractor vaccine requirements; (3) employees who work remotely from home or do not report to a workplace where other individuals (such as customers or coworkers) are present; (4) employees who work exclusively outdoors.

Vaccinations And Testing

The Standard requires that employers must establish, implement and enforce either a written mandatory vaccination policy or a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.

Employers are responsible for determining the vaccination status of each employee, and employees must provide acceptable proof of vaccination status.  Acceptable proof is: (1) a record of immunization from a health care provider or pharmacy; (2) a copy of the COVID-19 Vaccination Record Card; (3) a copy of medical records documenting the vaccination; (4) a copy of immunization records from a public health, state, or tribal immunization information system; or (5) a copy of any other official documentation containing the type of vaccine administered, dates of administration and name of the health care professional or clinic site administering them.  If none of these records can be obtained, an employer may accept a signed and dated statement by the employee attesting to his/her vaccination status, attesting that he/she has lost or is otherwise unable to produce proof required by this section of the regulations, and including the following language:  “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate.  I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”  The Standard is not considered to require mandatory vaccinations, since it provides the option of weekly testing together with wearing a face covering.

To meet the requirement of a mandatory vaccination policy, the policy must require vaccination of all employees, including new hires, as soon as practicable.  The only exceptions to such a policy are those employees: (1) for whom the vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to a reasonable accommodation due to disability or sincerely held religious beliefs that conflict with the vaccine requirement.

Testing must be approved testing and cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.  Note that employers who provide testing may be subject to other laws and regulations, and that testing results must be kept confidential under both OSHA and the Americans with Disabilities Act (“ADA”).

When an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed health care provider, the employer cannot require the employee to undergo otherwise required COVID-19 testing for 90 days following the date of the positive test or diagnosis.

If an employee is not fully vaccinated, the employer must ensure the employee wears a face covering indoors and when in a vehicle with another person, except: (1) if the employee is alone in a room with floor to ceiling walls and doors closed; (2) for a limited time when eating or drinking, or for identification purposes; (3) when wearing a respirator or face mask; or (4) where the employer can show that the use of a face covering is infeasible or creates a greater hazard to the employee.

Face coverings must completely cover the mouth and nose and be made with two or more layers of breathable fabric that does not let light pass through when held up to a light source.  Face coverings must be secured to the head with ties, ear loops, or elastic bands that tie behind the head, fit snugly without large gaps, and must not have holes or exhalation valves.  They must be replaced when wet, soiled, or damaged.  Face masks, as differentiated from face coverings, are FDA-cleared and authorized medical or isolation masks.  Employers must allow employees to wear respirators (a type of personal protective equipment that is certified and protects against airborne hazards by removing specific air contaminants from the air) rather than face coverings, whether required or not, but then must follow OSHA regulations on the use of respirators.  Employers are not required to pay for face coverings under the Standard.

An individual generally is considered to be fully vaccinated under the Standard two weeks after completing primary vaccination, with, if applicable, at least the minimum recommended interval between doses.

Time Off

Employers are required to support employees in receiving their vaccinations by providing a reasonable amount of time, up to four hours paid time including travel time, at the employee’s regular rate of pay for the employee to obtain a vaccination.  Employers also must provide reasonable paid time off to recover from side effects experienced following any vaccination dose.

For employees who are not fully vaccinated, the employer must ensure that the employee be tested at least once every seven days if the employee reports to any workplace where other individuals, such as coworkers or clients, are present, and provide proof of such testing no later than the seventh day after the last test result was provided.  If the employee is not in the workplace or is working remotely for a period of time, the employee must be tested within seven days prior to returning to the workplace, and must provide documentation of the test result upon return to work.  While the employer is not required to pay for the testing, note that Pennsylvania has a statute requiring employers to pay for medical examinations that the employer requires as a condition for employment, unless the medical examination is required by law as a condition of employment.  It is not clear whether this law would apply here, because it is not clear that the testing is a “medical examination,” or whether the OSHA requirement makes it a condition of employment.

Records, Notice And Reporting Obligations

Employers must maintain records of each test result, which must be kept in accordance with OSHA and ADA privacy requirements.  The results must be maintained and preserved at least while the emergency standard remains in effect.

Employers also must require employees to notify them if they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed health care professional.  The employee then must be kept out of work until either:  (1) the employee receives a negative result on a Nucleic Acid Amplification Test (“NAAT”), if the employee chooses to seek such testing; (2) the employee meets the return to work criteria in the CDC’s “Isolation Guidance;” or (3) the employee receives a recommendation to return to work from a licensed healthcare provider.  The time off need not be paid under the Standard, but the employee may be eligible to be paid for the time under another law or regulation, agreement, or collective bargaining agreement.

Employers must inform each employee, in a language and literacy level the employee understands, about:  (1) the requirements of the Standard and any employer policies implementing the Standard; (2) information about the vaccine by providing the document “Key Things to Know About COVID-19 Vaccines” available on the CDC website; and (3) OSHA requirements prohibiting discrimination or retaliation for reporting a work-related injury or illness, or for exercising rights as a result of actions required by the Standard or under OSHA in general, or for filing an OSHA complaint.

Employers must report work-related COVID-19 fatalities and hospitalizations to OSHA.  Work-related fatalities must be reported within eight hours of the employer learning of the fatality.  Work-related COVID-19 inpatient hospitalizations must be reported within 24 hours of the employer learning of it.

Employers must keep, and have available for review and copying by the end of the next business day after the request, individual COVID-19 vaccine documentation and test results to the employee and anyone with written authorized consent of the employee.  Within the same timeframe, employers must make available to an employee or employee representative the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.  Employers must provide, within four business days of a request on behalf of the Assistant Secretary, the employer’s written policy required by the Standard and the aggregate numbers.  All other records required to be maintained by the Standard must be provided by the end of the next business day after a request.

Compliance

Employers must comply with all requirements of the Standard (except for full vaccination) by December 6, 2021.  Employers must comply with requirements for full vaccination or testing by January 4, 2022.  Employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not completed the two-week waiting period.

While a federal judge in the Fifth Circuit has stayed the Standard from going into effect, it appears that the stay applies only to the case in question, and is not a national stay of the Standard.

What Does This Mean For You?  While there are several court challenges to the Standard, prudent affected employers will begin preparing for the Standard now.  By issuing this mandate as an OSHA standard, employers can be subject to hefty fines for each violation.

If you have any questions about this or any other employment law issue, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237, Grace C. Nguyen Bond at gcnb@blakingerthomas.com or (717) 509-7226, or Beth Ann Ebersole at bae@blakingerthomas.com or (717) 509-7219.

**This update is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist. This article was published on November 12, 2021.  Please check back or contact us for the most up-to-date information.**