Critical Update

Ward Damon Employment Law Practice Group

I. Jeffrey Pheterson, Bari L Goldstein and Kenneth Rehns

How to navigate and ensure compliance with these new mandatory vaccination standards

The Occupational Safety and Health Administration (“OSHA”) issued on Nov. 4, 2021 its long-awaited Emergency Temporary Standard (“ETS”) regarding vaccination for COVID-19.

Most notably, employers with at least 100 employees (“covered employers”) are now required to ensure their employers are fully vaccinated against COVID-19 or submit to weekly testing. 

While regulations were just published and we continue to evaluate how this will impact employers, below is an initial outline of some of the important mandated requirements:

Covered employers (those with at least 100 employees company-wide and not at a single facility) are required to adopt either a mandatory vaccination policy or a policy requiring unvaccinated workers to undergo weekly testing and wear a face covering at work no later than January 4, 2022. 

• Part time, full time, vaccinated and unvaccinated employees all count toward the 100 employee threshold; however, independent contractors do not count. 
• Employers are not required to provide or pay for tests, unless otherwise required by applicable law, e.g., certain state law.   
• Covered employers do not include:
  1. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors
  2. Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502)
  3. Workplaces of employers who have fewer than 100 employees in total.
  4. Public employers in states without an OSHA-approved State Plan (e.g., Florida)

The ETS also does not apply to certain employees of covered employers; however, these employees still count toward the 100 employee threshold. The employees mentioned below may work for a covered employer, but not be covered by their policy:

• Employees who do not report to a workplace where other individuals, such as coworkers or customers, are present;
• Employees working from home; or,
• Employees who work exclusively outdoors. In order to qualify as work performed exclusively outdoors, the following criteria must be met:
• The employee must work outdoors every work day.
• The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle).
• The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).
• The employee’s work must truly occur “outdoors,” which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.

If an employer adopts a mandatory vaccination policy to comply with the ETS, it must require vaccination of all current employees (and of all new employees), other than those:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or,
• Who are legally entitled to a reasonable accommodation under federal civil rights laws, because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
• Appropriate documentation should be provided by the employee and maintained in confidence by the employer regarding any of the above exceptions.

Be Sure to Pay Attention to these Deadlines and Details:

• By December 5, 2021, covered employers must provide up to four hours of paid time off to employees to receive each primary vaccination dose, and also provide paid sick leave to employees to recover from any side effects experienced following each vaccination dose.

• Employers should instruct employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.

• Employers must immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.

• Covered employers must ensure that each employee, who is not fully vaccinated, wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

• Covered employers should request acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

• Deadlines: While the testing requirement for unvaccinated workers will begin after January 4, 2022, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5, 2021.

Businesses that fail to comply with the ETS may face significant OSHA fines.

Additional questions? Our team at Ward Damon is here to help and continues to monitor changes to this recently released law. 

If you have any Employment & Labor questions related to the COVID-19 crisis, let our Ward Damon Employment & Labor Law team help. Please call us at 561-842-3000, or contact members of the Firm’s Labor and Employment Practice Group directly: I. Jeffrey Pheterson, Bari Goldstein and Kenneth Rehns.