OSHA Releases Workplace COVID-19 Vaccine and Testing Rule

Frederick G. Sandstrom

The Occupational Safety and Health Administration (“OSHA”) released this morning the much-awaited text of its emergency temporary rule regarding mandatory workplace vaccination and testing for the COVID-19 virus. The rule is expected to be published in the Federal Register tomorrow, November 5, 2021, and will be effective upon publication. The emergency rule will be in effect for an initial period of six months but may be extended by formal rulemaking.

The following FAQ addresses key questions and issues relating to the OSHA rule and its requirements:

  1. Who is covered by the OSHA rule?

The OSHA rule applies to employers with 100 or more employees company-wide. The threshold is fluid and an employer will be covered by the rule if it has 100 or more employees at any time while the rule is in effect. An employer cannot, for example, look only to its headcount on the initial effective date of the rule. Once an employer is covered, it will remain covered for as long as the rule is in effect, even if its headcount falls below 100 employees.

The rule states that employers must count both full-time and part-time employees (but not independent contractors) to determine whether it exceeds the threshold. The rule also confirms that the threshold is an aggregate employee count across all of an employer’s locations and facilities. The rule therefore applies to all of a covered employer’s facilities, irrespective of the number of employees at any one facility.

OSHA has also requested comment from smaller employers regarding their ability to comply with a similar rule, so it is possible that OSHA may seek to lower the 100-employee threshold through future rulemaking.

  1. Are there any exceptions to the OSHA rule?

The OSHA rule does not apply to (a) workplaces subject to the separate federal contractor vaccine mandate that was announced by President Biden in September 2021 or (b) workplaces subject to a separate OSHA emergency workplace vaccine rule that applies to healthcare settings. If an employer has certain workplaces covered by the federal contractor mandate and certain workplaces not covered by that mandate (because, for example, the employees at those workplaces do not perform work in connection with a federal contract), the OSHA rule would apply to the workplaces that are outside the federal contractor mandate.

The OSHA rule also does not apply to employees “who do not report to a workplace where other individuals such as coworkers or customers are present,” employees who “are working from home,” or employees “who work exclusively outdoors.”

Employers must still count any excepted employees for purposes of determining whether they meet the 100-employee threshold.

  1. What is the compliance deadline?

The OSHA rule contains two important deadlines. By December 5, 2021, covered employers must comply with all of the requirements of the rule (including the requirement that unvaccinated employees wear masks in the workplace) except for the vaccine and testing mandate. The vaccine and testing mandate goes into effect on January 4, 2022. Starting on January 4, covered employers must verify that employees who are not fully vaccinated test negative for COVID-19 at least once per week.

  1. What is acceptable proof of vaccination?

 Acceptable proof of vaccination from an employee includes (a) a copy of an employee’s CDC vaccination card, (b) a record of immunization from a healthcare provider or pharmacy, (c) an immunization record obtained from a public health information system, or (d) any other official documentation that reflects the type of vaccine received and the dates of vaccination. If an employee is not able to obtain any of these records, the employer may also accept a signed and dated statement from an employee attesting to his or her vaccination status.

An employee may be vaccinated through any of the COVID-19 vaccines approved by the FDA, including the Pfizer, Moderna, and Johnson & Johnson (Janssen) vaccines, or any vaccine listed for emergency use by the World Health Organization. An employee is considered to be fully vaccinated two weeks after receiving the last dose of a vaccine.

  1. Are booster shots required?

No. The OSHA rule applies only to primary vaccination. An employee does not need to have received a booster shot to be considered fully vaccinated.

  1. Are employers required to pay employees for the time it takes to be vaccinated and related recovery?

Yes. The OSHA rule requires employers to provide employees with reasonable time, including up to four hours of paid time off, to receive each primary vaccine dose during regular work hours. This requirement goes into effect on December 5, 2021. However, employers are not required to pay employees who choose to be vaccinated outside of work hours. Employers also are not required to pay for transportation or other ancillary costs associated with vaccination.

Employers must also provide employees with reasonable time off, including paid sick time, to recover from side effects experienced following each primary dose.

  1. Does the OSHA rule address religious and medical accommodations?

 The OSHA rule does not impact an employer’s obligation to reasonably accommodate sincerely-held religious beliefs or medical issues that prevent vaccination. Employers should continue to address requests for religious or medical exemptions under the standards required by Title VII and the Americans with Disabilities Act, as well as any applicable state laws.

  1. What forms of testing are permitted under the OSHA rule?

The OSHA rule permits the use of any COVID-19 test that is (a) approved by the Food & Drug Administration to detect current infection, including approval through an Emergency Use Authorization, (b) is administered in accordance with the test’s instructions, and (c) is not both self-administered and self-read, unless observed by the employer or an authorized telehealth provider. This includes both PCR and antigen tests, as well as rapid tests.

  1. Are employers required to pay for the cost of testing?

The OSHA rule does not require employers to pay for the cost of testing unvaccinated employees. However, there may be state laws that require employers to pay for employee testing costs and employers may be obligated to pay for testing required as part of a religious or medical accommodation from a vaccine requirement. A collective bargaining agreement may also require employers to pay testing costs for covered employees.

  1. Are employers required to pay employees for testing time?

The OSHA rule does not directly address payment for testing time, as this is an issue outside of OSHA’s jurisdiction. Depending on when and how employees are tested, there may be an obligation to pay for testing time under the federal Fair Labor Standards Act or state and local wage laws.

  1. Are there any recordkeeping requirements?

Yes. The OSHA rule requires employers to maintain records of each employee’s proof of vaccination status and any COVID-19 test results for employees who are unvaccinated that are necessary to establish compliance. These records must be treated the same as other employee medical records. However, the test results are not subject to any record retention rules otherwise applicable to medical records.

  1. How will OSHA monitor compliance and what are the penalties for non-compliance?

OSHA has the right to inspect workplaces for compliance with the mandate, but it is expected that OSHA will likely rely primarily on company record audits and employee reports of violations. Employers who fail to comply with the OSHA rule may be subject to significant monetary penalties for each violation, including penalties of up to $136,500 for willful or repeated violations.

  1. What about inconsistent state or local laws?

 By its terms, the OSHA rule is intended to preempt any inconsistent state or local laws.

  1. What comes next?

The OSHA rule will likely be challenged in court, and a number of states and employer advocacy groups have already hinted at legal challenges. We will keep you updated on any future legal developments regarding the OSHA rule.

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