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Monday, December 06, 2021
You are here : About / Contact SSA  >  SSA News

17

OSHA Issues New COVID-19 Rules for Employers with 100 or More Employees

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OSHA Issues New COVID-19 Rules for Employers with 100 or More Employees

The federal Occupational Safety and Health Administration (OSHA) published on November 5, 2021 an Emergency Temporary Standard that is intended to prevent the spread of COVID-19 in the workplace. It covers employers with 100 or more employees nationwide, including self storage owners, operators, and vendors.

 

Most significantly, covered employers must ensure that their employees are either fully vaccinated by January 4, 2022 or that unvaccinated employees test negative at least once a week. Starting December 5, 2021, unvaccinated employees must wear a mask on the job.

 

The rules provide exemptions for vaccination and testing for employees who work from home, work exclusively outdoors, or who do not report to a workplace where other individuals (e.g., coworkers or customers) are present. The rules also provide a limited testing exemption for unvaccinated employees who tested positive for or were diagnosed with COVID-19 within the last 90 days. There are additional requirements for paid time off to receive the vaccine, acceptable forms of testing, responsibility for paying for testing, and many others that are addressed in the ETS and discussed further below.

 

On November 12, 2021, a federal appeals court granted a motion to stay the ETS, ordering OSHA to “take no steps to implement and enforce” the ETS “until further court order.” As a result, OSHA announced it has suspended implementation and enforcement of the ETS pending future developments in the litigation.

 

On November 16, 2021, the lawsuit was transferred to another federal appeals court that will consider the merits of the legal challenges. SSA will provide updates on the legal status of the ETS as they develop.

 

Why Did OSHA Issue the ETS?

 

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

 

What Businesses Must Comply?

 

The rule applies to businesses with 100 or more employees nationwide. To determine applicability, businesses must count all part-time and full-time employees that they have in all 50 states collectively. Independent contractors are not counted. However, employers should be very careful when classifying workers as independent contractors as opposed to employees. Generally, facility managers are properly classified as employees and not independent contractors. There is a memo regarding proper worker classification in the Legal Resource Center. OSHA offered the following examples of how certain employees should be counted:

 

  • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees;
  • If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees; and,
  • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.

 

Are There Any Exemptions?

 

Yes. The ETS also does not apply to the employees of covered employers:

 

  • Who do not report to a workplace where other individuals such as coworkers or customers are present;
  • While working from home; or,
  • Who work exclusively outdoors.

 

SSA members should be very careful when analyzing possible exemptions. For example, an employee who switches back and forth from teleworking to working in a setting where other people are present (e.g., an office) is covered by the ETS. Such an employee, if unvaccinated, must be tested within the week before working in the office. However, storage owners and operators may be able to structure their workforce and work environment to limit the frequency of testing for unvaccinated employees.  

 

The ETS has other exemptions for federal contractors and subcontractors and healthcare employees who are covered by other vaccine mandates.

 

Do I have to Implement a Mandatory Vaccination Policy?

 

No. Employers must either implement an employee vaccination policy that requires employees to be vaccinated and present sufficient proof of vaccination status or implement a required weekly testing protocol and use of face covering. The testing and mask option is addressed further below.

 

If an employer elects to implement a vaccination policy, they must obviously determine each employee’s vaccination status. Employers must require vaccinated employees to provide acceptable proof of their vaccination status. Acceptable proof under the ETS includes a record of immunization from a health care provider; a copy of the COVID-19 Vaccination Record Card; or, a copy of medical records documenting the vaccination, among others.

 

If an employee is unable to present sufficient proof of vaccination, the employee may provide a signed statement:

 

  • That attests to their vaccination status;
  • That attests that they have lost and are otherwise unable to produce sufficient proof of status, and,
  • Includes the statement, “I declare 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.”

 

Do I Have to Provide Paid Time Off for Vaccinations?

 

Yes. Covered employers must provide a reasonable amount of time to each employee to receive their vaccination doses. Up to four (4) hours of paid time, including travel time, at the employee’s regular rate of pay must be provided. Also, a covered employer must provide a reasonable amount of time and paid sick time leave to recover from side effects following each vaccination dose. 

 

Employers are not, however, obligated by the ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. Employers should verify their reimbursement obligations under the applicable state and local laws.

 

Is Another Compliance Option Available Outside of a Vaccine Requirement?

 

Yes. Alternatively, employers may implement a testing protocol and mask requirement.  

Covered employers must ensure that each employee who is not fully vaccinated and reports to a workplace where other individuals (e.g., coworkers, customers) are present:

 

  • Is tested for COVID-19 at least once every seven days; and,
  • Provides documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result.

 

Employers must ensure these unvaccinated employees are tested at least once every seven calendar days, regardless of their work schedule. If an employee does not comply with the testing requirement and is not vaccinated, he or she must be removed from the workplace until a test result is provided.

 

An employer has some discretion regarding how to satisfy the testing requirements, but those policies and procedures must be detailed in the employer's written policy. For example, the employer must specify how testing will be conducted (e.g., employees independently scheduling tests). The employer must also specify in their policy how employees should provide their COVID-19 test results to the employer (e.g., to the human resources department). Test results given to the employer must contain information that identifies the worker (i.e., full name plus at least one other identifier, such as date of birth), the specimen collection date, the type of test, the entity issuing the result (e.g., laboratory, healthcare entity), and the test result.

 

What Testing Methods are Permissible?

 

The ETS provides several permissible testing options as those:

 

  • Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
  • Administered in accordance with the authorized instructions; and,
  • Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

 

SSA members must ensure that their testing method complies with the above. Notably, the ETS permits use of certain at-home tests that are authorized by the FDA. However, an employee may not self-administer the test and be the one to interpret it solely. The employer or an authorized telehealth proctor must confirm the status of the test.

 

Who Pays for the Testing?

 

Employers are generally not required to pay for testing under the ETS. Many employers with employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing. It was OSHA’s stated intent that the standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost. However, there might be other laws that require the employer to pay for the testing. In certain circumstances, the employer may be required, under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested. SSA member should consult with experienced counsel when determining how the testing expense will be covered.

 

What if the Employee Refuses to Be Tested?

 

If an employee is not vaccinated and does not provide the result of a COVID-19 test, the employer must keep the employee removed from the workplace until the employee provides a negative test result.

 

Do I Need to Retain Testing Records?

 

Yes. Employers must maintain a record of each test result provided by each employee or each test conducted by the employer. These records must be maintained in accordance with 29 CFR 1910.1020 as an employee medical record and must not be disclosed except as required by the ETS or other federal law. However, these records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) (Employee medical records) but must be maintained and preserved while this ETS remains in effect.

 

Do I Need to Have a Written Policy in Place?

 

Yes. No matter whether an employer elects to implement a vaccine requirement or a vaccine, testing, and mask requirement, there must be a written policy. The rule technically requires a written vaccination policy:

 

  • An employer policy requiring each employee to be fully vaccinated. To meet the definition of a mandatory vaccination policy, the policy must require: Vaccination of all employees, including vaccination of all new employees as soon as practicable, other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) 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.

 

However, the rule provides an exemption from the mandatory written vaccination policy if the employer requires employees to submit to regular testing for COVID-19 and wear a face covering. All employers must have a written policy that requires all employees to be either fully vaccinated against COVID-19 or provide proof of regular testing and require use of face masks as addressed above. There are two (2) template policies provided at the end of this summary.

 

Also, employers must provide information to each employee about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated. To meet this requirement, employers must provide the CDC's document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/​coronavirus/​2019-ncov/​vaccines/​keythingstoknow.html (CDC, October 7, 2021), to each employee.

 

Do Employees Have to Disclose a Positive Test? Also, How Must We Handle a Positive Test?

 

Yes. Employers must require each employee to promptly notify the employer when the employee receives a positive test or is diagnosed by a licensed healthcare provider. The notification must occur regardless of the employee’s vaccination status.

 

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

 

When Can an Employee Return to Work Following a Positive Test?

 

The ETS provides three alternatives. First, an employee may return to work if they receive a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test (the most common screening test).

 

Second, the employee may return to work if they meet the return-to-work criteria in CDC's “Isolation Guidance.” CDC's guidance states that a COVID-19 positive person can stop isolating when three criteria are met:

 

  • At least ten days have passed since the first appearance of the person's symptoms;
  • The person has gone at least 24 hours without a fever (without the use of fever-reducing medication); and,
  • The person's other symptoms of COVID-19 are improving (excluding loss of taste and smell)

 

Finally, the employee may return to work, if the employee receives a return-to-work recommendation from a licensed healthcare provider.

 

Do Unvaccinated Employees Also Have to Wear Masks?

 

Yes. In addition to required testing, unvaccinated employees must wear a face covering when indoors except for very limited circumstances such as when alone in a room with floor to ceiling walls with a closed door or when eating or drinking.

 

Employers generally do not have the bear the cost of face masks for those employees who elect to remain unvaccinated. Although, from a practical perspective, it may be advisable for employers to provide face coverings.

 

Do I have to Inform OSHA of COVID-19 Fatalities and Hospitalizations?

 

Yes. Employers must make the report to OSHA within 8 hours for a fatality, or 24 hours for an in-patient hospitalization. The clock starts to run from the time the employer (or the employer's agent) learns about the reportable event. Employers have three options for reporting work-related fatalities and in-patient hospitalizations to OSHA:

 

  • By telephone to the OSHA Area Office that is nearest to the site of the incident;
  • By telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742); or,
  • By electronic submission using the reporting application located on OSHA's public website at www.osha.gov.

 

My State Is Suing to Stop Implementation of the ETS or Has Rules that Contradict the ETS. What Should I Do?

 

On November 12, 2021, a federal appeals court granted a motion to temporarily halt implementation of the ETS. The federal court ordered OSHA to “take no steps to implement and enforce” the ETS “until further court order.” As a result, OSHA announced it has suspended implementation and enforcement of the ETS pending future developments in the litigation. On November 16, 2021, the lawsuit was transferred to another federal court who will consider the merits of the pending legal challenges.

 

The ultimate fate of the ETS is presently unknown. SSA will provide updates on the status of the ETS as they develop.

 

I Live in an OSHA State-Plan State, Does That Affect Implementation of the Rule?

 

It might. Twenty-two states operate their own OSHA programs. They are required to implement the federal minimum requirements, but states may elect to impose mandates that go beyond the federal standard. Also, the timeline for implementation may differ slightly. SSA members in a state-plan state should monitor developments from the state OSHA program carefully.

 

Do You Have Any Additional Resources for SSA Members?

Yes. The following are resources are from OSHA:

 

If you have any questions or would like a referral to a law firm to assist with compliance, please contact Joe Doherty or Daniel Bryant

 

 

 

 

 

| Categories: | Tags: vaccine, OSHA, Regulations, employees, Mandates | View Count: (208) | Return

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