UPDATE: On November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued an order staying the OSHA rule below. This means that the rule is not in effect at this time. We will continue to follow, monitor, and update these actions closely. 

In the rapidly changing COVID-19 environment, we continue to monitor action at the federal, state, and local level. 

Below is an overview of the U.S. Department of Labor’s Occupational Safety and Health Administration’s (”OSHA”) emergency temporary standard (“ETS”) which requires employers with 100 or more employees to mandate vaccinations, among other requirements. This ETS was issued on November 4, 2021. 

ACTION ITEMS:

The action items below apply only to employers covered by this ETS. An explanation of which employers are, and are not, covered is included below. 

• Mandatory vaccination policy: Employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers must ensure that employees who are not exempt from the requirement are fully vaccinated by January 4, 2022. 
• Employees exempt from vaccination: Employees with medical or religious reasons for not being vaccinated may be given an exemption from the mandate, but those individuals will then have to undergo regular testing and wear a face covering at all times in the workplace.  Employers must establish, implement, and enforce a policy for non-vaccinated employees to be tested for COVID-19 weekly (if the employee is in the workplace weekly). If the employee is away from the workplace for a week or longer, that employee must be tested within seven (7) days before returning to work. Unvaccinated employees must also wear a face covering while in the workplace at all times beginning no later than December 5, 2021. Employers are not required, but may volunteer, to pay the costs associated with the weekly COVID-19 testing. 
• Recording vaccination status: Employers must determine each employee’s vaccination status, obtain acceptable proof of that status, and maintain records of each employee’s status. That proof may be in the form of a copy of the employee’s vaccination card or a signed and dated attestation by the employee that they are fully vaccinated.
• Time off to get vaccinated: Beginning December 5, 2021, employers must provide employees reasonable time, including up to 4 hours of paid time off, to receive each vaccination dose. This includes reasonable time and paid sick leave to recover from side effects experienced after each dose. 
• If an employee tests positive for COVID-19: Employees must be required to promptly notify employers of a positive COVID-19 test or diagnosis. Employers must report any work-related COVID-19 fatalities to OSHA within 8 hours and any COVID-19 in-patient hospitalizations within 24 hours. 

EMPLOYERS COVERED BY THE NEW RULE:

All employers with a total of 100 or more employees firm- or corporate-wide (not per site) are covered under the new rule, with a few exceptions described below. In counting its employees, employers must include all employees across all of their U.S. workplaces, regardless of where employees perform their work—this includes employees who work from home, in their vehicles, or rarely report to the office. Part-time employees are included in the count to determine whether the mandate applies to an employer, but independent contractors are not. Temporary and seasonal workers are included as long as they are employed at any point while the ETS is still in effect. 

The rule covers states with OSHA-approved State Plans, state and local government employers, and private employers with 100 or more employees. Minnesota, for example, has an OSHA-approved State Plan.  We will continue to monitor Minnesota OSHA’s activity and any updates to that agency’s plan documents.

Even if an employer is covered by the ETS, some employees may nevertheless not be required to be vaccinated. Although they “count” for purposes of determining whether an employer has 100 or more employees, employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees who work from home, and employees who exclusively work outdoors are not subject to the ETS requirements.  

EMPLOYERS NOT COVERED BY THE NEW RULE:

Employers with fewer than 100 employees in total are not covered, along with public employers in states without OSHA-approved State Plans. 

Employers that are already covered under the federal contractor vaccine mandate (the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors) and healthcare employers that are subject to the Healthcare Emergency Temporary Standard are not covered under this new OSHA mandate. 

IMPORTANT UPCOMING DEADLINES:

The following requirements must be met by December 5, 2021:

• Establish a policy on vaccination.
• Determine the vaccination status of each employee and begin gathering acceptable proof of vaccination.  Employers should maintain proof of vaccination records (separate from each employee’s personnel file) and should maintain a confidential roster of employees’ vaccination status.
• Provide support for employee vaccination (including paid time off and sick leave).
• Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis. 
• Remove any employee from the physical workplace who received a positive COVID-19 test or diagnosis for the amount of time recommended in CDC and state agency guidance.
• Implement face covering requirements for unvaccinated employees when indoors or occupying a vehicle with another person for work purposes.
• Provide each employee information about the ETS and the employer’s policies.
• Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours.
• Be prepared to make records available for OSHA review. 

The following requirement must be met by January 4, 2022:

• Ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once per week) or within 7 days before returning to work (if away from the workplace for a week or longer). 

Best & Flanagan’s Employment and Labor team stands ready to answer your questions about this new rule, to develop policies in compliance with the ETS, and to advise about other employment-related COVID concerns and questions.  Please reach out to one of us for advice specific to your organization.