Client Alert: Stay Lifted on OSHA’s Vax or Test Mandate
Date: December 20, 2021
On November 5, 2021, OSHA published its emergency temporary standard (ETS) to protect unvaccinated employees of large employers from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers are required to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
Who is a covered employer?
Companies with 100 employees or more are covered. The 100-employee threshold is based upon a companywide headcount rather than the number of employees at a particular worksite. Employers should count all employees individually, whether they are full time, part time or working on a temporary basis. Independent contractors and leased employees (where the client employer is not the employer of record) are not counted.
That said, the mandate does not apply to remote workers. Companies with a fully remote workforce are not covered, but if there are any employees who do report to a company workplace- then the mandate applies.
Who is a covered employee?
Employees who work for a covered employer are generally covered and must either be vaccinated or submit to weekly testing.
Employees exempt from the mandate are:
- Workers who do not report to a workplace where other individuals are present or who telework from home; and
- workers who perform their work exclusively outdoors.
When is the mandate effective?
In light of the delay caused by the Fifth Circuit’s stay, the initial deadlines for compliance have been adjusted. The Department of Labor issued a statement following the Sixth Circuit’s lifting of the stay:
“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, 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. OSHA will work closely with the regulated community to provide compliance assistance.”
The ETS was effective immediately upon its publication in the Federal Register. Originally, the ETS provided that employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication. As noted above, the Department of Labor has indicated it will provide a grace period for compliance.
Any violations or non-compliance may be subject to penalties of almost $1,400 per violation.
What steps are required if covered?
The ETS requires employers to do the following:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
Mandatory Vaccination Policies vs. Vax or Test Policies
The mandate strongly encourages developing a mandatory vaccine policy. This policy must allow for up to 4 hours of paid leave to obtain a vaccine if during work hours, and also provide reasonable (unpaid) leave for any potential side effects from receiving the vaccine.
In drafting the mandate, OSHA aimed to design a rule that preserves a limited degree of employer flexibility, and strongly encourages, but does not strictly require, vaccination. The weekly testing option provides an alternative for certain companies, industries, and workforces that might not be suited to a mandatory vaccine policy.
State Plans’ obligations with respect to this ETS
When Federal OSHA promulgates an emergency temporary standard, State Plans must either amend their standards to be identical or “at least as effective as” the new standard, or show that an existing State Plan standard covering this area is “at least as effective” as the new Federal standard. State Plans may also choose to adopt more protective occupational safety and health requirements. Adoption of this ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the promulgation date of the final Federal rule, and State Plans must notify Federal OSHA of the action they will take within 15 days. The State Plan standard must remain in effect for the duration of the Federal ETS.
Notably, a State Plan standard that prohibits employers from requiring vaccination would not be at least as effective as this ETS because OSHA has recognized in this ETS that vaccination is the most protective policy choice for employers to adopt to protect their workplaces.
Going Forward
The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. Many companies, large and small, have already have taken similar actions in recent months – adopting vaccine requirements or regular testing as necessary measures to protect their workers and customers. Many employers who have put these policies on hold, wish to revisit them in light of the Sixth Circuit decision.
The Sixth Circuit’s ruling is not the end of the line in the battle over the legality of the ETS – challengers have already filed a Notice of Application for Stay of the Sixth Circuit Order with the United States Supreme Court. Whiteford Taylor & Preston is staying up to date with the dynamic and voluminous guidance being issued, and is available to address the developing requirements. Stay tuned and reach out to our team regarding how these developments may impact your business.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.