OSHA’s Coronavirus Vaccine Emergency Rule Has Arrived: Now What?

COVID-19, In the News
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The coronavirus has been around for a while. Yet most employers have lacked a set of legal standards that outline what they must do to reduce the risk of coronavirus infection among their employees.

Some states, like Virginia, have taken the lead when it comes to workplace rules concerning the coronavirus. But these state laws don’t apply beyond their respective borders. So what about a federal law that would apply to all states? People have been asking for that for a while now, but until recently, the Occupational Safety and Health Administration (OSHA) has done little beyond releasing suggestions.

But all of that changed on November 4, 2021, when OSHA released its COVID-19 Vaccination and Testing Emergency Temporary Standard (Vaccine and Testing ETS). This is a regulation that has the force of law and goes into effect immediately until replaced by a permanent standard. Let’s take a look at what we know (and don’t know) about this new law.

Overview of the COVID-19 Vaccination and Testing ETS

The Vaccine and Testing Emergency Temporary Standard requires employers with 100 or more employees to either require their employees get the coronavirus vaccine or get regular coronavirus testing and wear a face covering at work. But let’s take a deeper look into the law.

            Are There Employers or Employees Not Covered by the Vaccination and Testing ETS?

Yes. In addition to employers that don’t meet the 100 employee threshold, this ETS doesn’t apply to:

  • Public employers in states that don’t have State Plans;
  • Workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and
  • Health care providers that are subject to the Healthcare ETS.

As for employees, those working for employers covered by the Vaccination and Testing ETS may nevertheless be exempt from its requirements, including:

  • Employees who work alone in the workplace;
  • Employees who work from home; and
  • Employees who work exclusively outside.

Can Employers Go Beyond the Vaccination and Testing ETS?

Yes. The Emergency Temporary Standard gives employers the option of creating a mandatory coronavirus vaccination policy or letting employees get regularly tested instead. However, employers may choose not to give the testing option and instead require all their employees to get vaccinated.

            Are Reasonable Accommodations Allowed?

Yes. Reasonable accommodations must be made in accordance with existing federal civil rights laws, including those relating to sincerely held religious beliefs or legally-recognized disabilities.

            What Happens if an Employee Has the Coronavirus?

If an employee receives a positive test result or diagnosis for the coronavirus, they must promptly notify their employer. Upon receiving this information, the employer must immediately remove the employee from the workplace, even if the employee is fully vaccinated.

Employers must also report to OSHA any coronavirus fatalities within eight hours of learning about the fatality. Any hospitalizations due to the coronavirus must be reported to OSHA within 24 hours of the employer learning of the hospitalization.

How Do Employees Prove They’re Vaccinated?

An employee must provide “acceptable proof of vaccination.” These may include:

  • An immunization record from a health care provider or pharmacy.
  • A copy of the COVID-19 Vaccination Card.
  • A copy of the employee’s medical records showing vaccination.
  • A copy of “any other official documentation” that contains the type of vaccine given, when it was given and the name of the health care provider or location that gave the vaccine.

If an employee claims they don’t have or lost their proof of vaccination, as an alternative, the employee may provide a signed and dated statement where they attest to:

  • Their vaccination status; and
  • The fact that they lost or otherwise can’t provide proof of vaccination.

This statement must also include:

  • The following language: “I declare (or certify, verify, or state) 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.”
  • Information concerning the vaccine, such as the type of vaccine, when it was administered and who or where it was administered.

Will Employers Need to Provide Time to Employees to Get Vaccinated?

Yes. If an employee gets vaccinated during work hours, employers must provide up to four hours of paid time off (at the employee’s regular rate of pay). This paid time can’t be deducted by other paid time off, such as vacation or sick leave.

How Will Enforcement Work?

OSHA will likely rely on the occasional site inspection and worker complaints to learn of any violations. If a violation is found, an employer faces a monetary penalty of $13,653 per violation. If the violation is repeated or willful, the penalty can increase to $136,532 per violation.

            When Does the Vaccination and Testing Emergency Temporary Standard Go Into Effect?

The effective date of the ETS was November 5, 2021, which is when it was published in the Federal Register. However, that doesn’t mean all of its mandates go into effect at that time. For example, by December 5, 2021, covered employers must comply with most of the requirements from the ETS, such as:

  • Creating a vaccination policy.
  • Determining the vaccination status of each employee, including obtaining sufficient proof of vaccination and creating a roster of vaccination status.
  • Providing support to employees to get vaccinated, including paid time off.
  • Mandating that unvaccinated employees wear face coverings indoors or when sharing vehicles with another person for work-related reasons.

By January 4, 2021, employers must test all employees not fully vaccinated at least once per week or within seven days before returning to work (if out of the workplace for more than a week).

            Where Can I Get Further Information About the Vaccination and Testing ETS?

OSHA has released several online resources that help explain what the Vaccine and Testing ETS requires, including an FAQ, Fact Sheet and Summary.

Potential Hurdles for the Vaccination and Testing ETS

Given how politically charged the coronavirus vaccine is, the ETS likely faces a series of legal challenges. Attorneys general from states with laws against mask or vaccine mandates will probably file lawsuits against OSHA attempting to block these new rules. Their potential legal arguments could revolve around allegations of:

  • OSHA failing to follow the proper procedures in implementing the ETS;
  • The ETS exceeding the OSHA’s legal authority; and/or
  • The ETS violating a constitutional or statutory right.

Even if a state attorney general doesn’t sue to block the Vaccination and Testing ETS, another way to try and stop it is to just ignore it. Specifically, many states aren’t subject to regulations stemming from the Occupational Safety and Health Act of 1970 (OSH Act). Instead, they have their own workplace safety regulations in place (State Plans) that are at least as effective as the OSH Act’s regulations.

A state with a State Plan might ignore the legal requirement that they adopt OSHA’s Vaccination and Testing ETS or implement a regulation that’s at least as effective. If this happens, OSHA can either step in and take over the State Plan or an employee can file a lawsuit asking the court to force the state to modify its State Plan to include the Vaccination and Testing ETS’ requirements.

Unknowns About the Vaccination and Testing Emergency Temporary Standard

The ETS is technically not permanent law. But there’s the plan that it will become a final standard and become permanent. So the ETS also serves as a Proposed Rule, which means OSHA is open to comments and suggestions from the general public and any other entity that might be affected by this law.

Assuming a final standard goes into effect, it’ll probably be different than the current ETS. How it’ll be different is anyone’s guess, but there could be several potential areas of modification or discussion.

First, will it ever apply to smaller employers? OSHA created the 100 employee threshold because it believes that employers of this size can handle the ETS’ requirements. It’s unclear if the final standard will apply to smaller employers and if so, what adjustments will be made to accommodate them.

Second, who bears the cost of regular testing? The Vaccination and Testing ETS gives employers the freedom to decide how to answer this question. Therefore, employers may require their employees to pay for the costs of their testing, as long as it doesn’t violate another law, collective bargaining or employment agreement. But the final standard could make a decision one way or another with respect to who pays for these tests.

Third, there could be a section added to recognize workers who have some level of natural immunity due to a prior coronavirus infection. There’s no such exception now due to the lack of scientific clarity as to how much immunity a prior infection provides.

With more research and data analysis, OSHA might decide to add an exception for those previously infected. But if this change is made, there’s a good chance that certain limitations will exist. For example, the infection may need to have occurred within a certain time period.

Fourth, there’s the potential for employers to find a workaround for the four hours of the paid time off they must provide employees to get vaccinated during regular work hours.

Imagine an employer taking steps to make it difficult for an employee to take time off from work to get vaccinated. This could easily be done by increasing the employee’s workload. Then the employee may choose to get vaccinated when not at work, such as on the weekend. If the employee does this, then OSHA has stated that the employer doesn’t have to provide the paid time off for vaccination.

Summing It Up

The Vaccination and Testing Emergency Temporary Standard now requires most large employers to begin the process of requiring their employees get vaccinated or get tested once a week and wear a face covering at work. Legal challenges are almost guaranteed, although it’s not clear if these will be successful or what effect they may have on the permanent version of this ETS.