OSHA’s COVID-19 Vaccine Mandate in a Nutshell

By Thomas R. Revnew & Michael S. Kernstock - Peters, Revnew, Kappenman & Anderson, P.A.

November 4, 2021

Private Employers with 100+ Employees Must Mandate COVID-19 Vaccinations

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) will publish its Emergency Temporary Standard (“ETS”) on the COVID-19 Vaccine Mandate in the Federal Register.  Employers with 100 or more employees will have little time to come into compliance with the ETS.  The following is a summary of the more notable provisions within the ETS and employers’ obligations.

Effective Date:  The ETS becomes effective immediately upon publication in the Federal Register on November 5, 2021.

Who it Applies To: The ETS applies to all employers who employ 100 or more employees at any time firm or corporate-wide. The ETS does not apply to workers: (1) who report to a workplace where other individuals such as coworkers or customers are not present; (2) while working from home; or (3) who work exclusively outdoors. The ETS also does not apply to workplaces covered under the federal contractor vaccinate mandate order.

Employer Requirements:
1.    Employers must develop, implement and enforce a mandatory vaccination policy or a policy that requires employees who have not been vaccinated to undergo weekly COVID-19 testing and wear a face covering at the work place.
  o    Employers must pay employees for up to four hours to obtain vaccinations and paid sick leave to recover from side effects experienced following each dose.
  o    Employers are not required under the ETS to pay for the weekly COVID-19 tests, but may be required to do so under various state laws or contractual obligations.  COVID-19 testing must meet certain criteria as set forth under the ETS and cannot be self-administered and self-read by the employee unless observed by the employer or an authorized telehealth proctor.  Additionally, employees must notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 and must be immediately removed from the worksite upon a positive test.

2.    Employers must determine the vaccination status of each of its employees, obtain acceptable proof of vaccination status as described under the ETS and maintain a roster of each employee’s vaccination status.
  o    The employer must provide an employee with records concerning their individual vaccination status and/or test results as well as to any employee representative by the end of the next business day.
  o    The employer must provide an employee or employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees working at that worksite by the end of the next business.    
  o    The employer must provide OSHA within 4 hours of a request, the employer’s written vaccine policy and the aggregate number of vaccinated and unvaccinated workers.  By the end of the next business day, an employer must provide all other records required by OSHA.

3.    Employers must provide information to employees in a language and at a literacy level they understand, including: (1) information about the ETS and workplace policies established to implement the ETS; (2) the CDC document, “Key Things to Know About the COVID-19 Vaccinate; (3) information about OSHA’s whistleblower protections; and (4) information about criminal penalties for providing false information.
 
Compliance Deadlines:
1.    By December 5th, all requirements other than testing for employees who have not completed their entire primary vaccination dose(s), which means two weeks after the last dose is administered, must be implemented.
2.    By January 4, 2022, weekly testing for employees who have not received all vaccination doses for a primary vaccination must be implemented.

Employers should be advised that failure to comply with OSHA’s ETS will carry with it civil as well as potential criminal penalties that can be significant.

Potential Challenges to the ETS

This measure will be met with a variety of legal challenges, which several governors, various state Attorneys General, and other legislators have already threatened to do. There is a very real possibility that such a rule could be enjoined by the federal courts. However, employers should not rely on such a challenge and should still prepare to comply with this rule by the deadlines set forth above.

Historically, OSHA has rarely used its ETS authority, doing so only nine times and, prior to the last COVID-19 ETS, was last used in 1983. Of those nine times, the courts fully vacated or stayed the ETS (effectively defeating the ETS) four times and partially vacated the ETS once.

We will continue to monitor any challenges to the ETS and provide updates as changes arise. If you have questions regarding the above or any other employment-related concerns, please contact Thomas R. Revnew at trevnew@prkalaw.com, Michael S. Kernstock at mkernstock@prkalaw.com, or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.