On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released the 490-page text of its much anticipated Emergency Temporary Standard requiring employers with 100 or more employees to mandate vaccinations and/or testing (the “Rule”).
Many questions about the Rule will arise, and we understand that several lawsuits challenging the validity or enforcement of the Rule on constitutional and other grounds have been filed today, with more lawsuits expected.
Employers will need to study the Rule carefully to understand whether they meet the 100-employee threshold for coverage, which employees are subject to the Rule, and the details of the Rule regarding written vaccination and testing policies, record-keeping and enforcement. In this summary, we have identified key elements of the Rule of which employers should be aware. Based on our initial review of the Rule, it appears that:
100-Employee Threshold
- The Rule applies to employers of 100 or more employees. All employees, whether or not covered by the Rule, are counted for purposes of determining whether the 100 employee threshold is met. Part time employees are counted the same as full-time employees. Independent contractors are not counted, and “leased employees” (i.e., employees of staffing companies) are not counted as employees of the employer (they are counted as employees of the staffing company, and the staffing company would have to comply if it has 100 or more employees). All employer locations are aggregated for counting the number of employees. Separate companies, though related, are considered separate employers unless workplace safety is centrally managed across those separate companies, in which case they are considered as one employer. The Rule continues to apply even if the employer at some point has fewer than 100 employees.
- Whether restructuring an employer with 100 or more employees into smaller entities with fewer than 100 employees each will avoid application of the Rule is an open question. The Rule applies if the employer has 100 or more employees as of the “effective date” of the rule, which is the date it is published in the federal register – which has been announced to be November 5, 2021 – and once it applies, it continues to apply even if the number of employees drops below 100. The Rule does not clearly address whether it would apply to newly formed subsidiaries or affiliates of employers who are subject to the Rule, if those subsidiaries or affiliates themselves have fewer than 100 employees and if their employees formerly were employed by the employer that was subject to the Rule.
Vaccination and Testing Requirements
- Employers must establish, implement and enforce a written mandatory vaccination policy, or a written mandatory policy that requires employees to choose either vaccination or weekly testing.
- The Rule allows employers to (A) require all employees to be vaccinated or (B) allow employees to choose to be vaccinated or provide proof of weekly testing using approved test types and methods.
- The weekly testing requirement applies to employees who are not “fully vaccinated” – i.e., employees who are not at least 2 weeks past the date when they had received all doses of their “primary vaccination doses”. Further, of those employees, the weekly testing requirement (in lieu of vaccination) applies only to employees who report at least once every 7 days to a workplace where other individuals or co-workers are present. Those employees must be tested at least once every 7 days and must provide acceptable documentation (as specified in the Rule) of the test result within 7 days of the last test result provided to the employer.
- The vaccination and testing requirements do not apply to employees who (A) are working from home (but they do apply if the employee comes to the workplace at least once every 7 days), (B) work alone, or (C) work exclusively outdoors.
- Vaccination requirements must exempt employees (A) who for medical reasons should not be vaccinated or for whom vaccination should be delayed or (B) who are legally entitled to a reasonable accommodation under federal civil rights laws because they have (i) a disability (accommodations would generally be governed under rules of the Americans with Disabilities Act) or (ii) sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement.
Paid Time Off/Sick Leave
- Employers are required to provide paid time off/sick leave (up to four hours) to employees to obtain their “primary vaccination dose(s)” (i.e., the single dose of the J&J vaccine or the two doses of the Pfizer and Moderna vaccines).
- Separately, employers are required to provide reasonable time off and paid sick leave to employees to recover from side effects of the primary vaccination doses.
- Employers are not required to pay for either vaccinations or testing (other than paid time off/sick leave for primary vaccination doses and side effects as discussed above).
Employer Enforcement
- Employers must remove any non-fully vaccinated employees from the workplace who does not provide a test result on time, and keep them out of the workplace until they provide a test result.
- Employees who are not fully vaccinated must wear face coverings (masks or more extensive) as specified in the Rule while in the workplace, with limited exceptions (while eating, while alone in a closed room, etc.).
- If employees becomes ill with or are diagnosed with COVID, those employees must immediately be removed from the workplace and remain out until they have either (A) provided a negative test result using a nucleic acid amplification test (NAAT), (B) met the return to work criteria in the CDC’s “Isolation Guidance”, or (C) recommended for return to work by a licensed healthcare provider.
Employer Recordkeeping and Information to Employees
- Employers must verify and maintain records of each employee’s vaccination status, as well as records of employee test results. The Rule specifies the type and manner of testing, and the evidence of vaccination and test results, that are acceptable.
- Employers must produce within 4 hours of OSHA’s request a copy of the written vaccination or vaccination/testing mandate plan that complies with the requirements of the Rule (including requirements about information to be given to employees about vaccines), and must produce within one business day other records, including records of vaccination and testing of employees.
- Employers are required to give all employees information about vaccination and testing policies, written at a level so the employees can understand it, as well as other specified information about vaccination (including information from the CDC).
- Employers must promptly report COVID fatalities and in-patient hospitalizations among their employees after learning about them.
Penalties and Compliance
- The Rule itself does not state the penalties or fines that would apply for non-compliance. Subject to further OSHA clarification, it appears that the applicable penalties and fines are those set forth in OSHA’s January 8, 2021 Memorandum setting forth the 2021 inflation-adjusted penalties for non-compliance with OSHA workplace safety rules (the “2021 Penalties Memo). The 2021 Penalties Memo outlines maximum civil penalties of $13,653.00 per violation (including $13,653.00 per day for failure to abate the violation), and of up to $136,532 per violation where the violation is found to be willful or repeated. The 2021 Penalties Memo can be found at https://www.osha.gov/memos/2021-01-08/2021-annual-adjustments-osha-civil-penalties.
- Compliance with all elements of the Rule (including the requirement to have a mandatory vaccination or vaccination/testing policy) except for implementation of the weekly testing requirements is required within 30 days of the effective date of the Rule. As noted in its 14, that effective date is expected to be tomorrow, and accordingly, the compliance date would appear to be December 4, 2021. Compliance with implementation of the testing portion of the Rule is required within 60 days after the effective date, which appears to be January 3, 2022.