Nov. 4, 2021 Federal OSHA Published New COVID-19 Vaccination and Testing Requirements

Today, the federal Occupational Safety and Health Administration (OSHA) published the COVID-19 Vaccination and Testing Emergency Temporary Standards (ETS) announced by President Biden on September 9, 2021.  The ETS applies to nearly all private employers in the U.S. with 100 or more employees (except federal contractors and healthcare employers who are subject to different standards).  

Federal OSHA ETS Broadly Requires Employee Vaccination or Weekly Testing

Briefly, the federal OSHA ETS requires employers with 100 or more employees in the U.S. to:

  • Implement either a mandatory vaccination policy, or a policy that allows employees to choose between vaccination or weekly COVID-19 testing and face covering requirements. If a mandatory vaccination policy is selected, employers will still have testing obligations for employees who are granted a religious or medical exemption.

    Notably, employees who exclusively work remotely are not subject to the vaccine or testing mandates.  However, before such employees are permitted to visit the workplace, they must present proof of vaccination or a negative test result. 
  • Maintain a roster with the vaccination status of all employees (which must be presented to OSHA, upon request, within four hours) and maintain acceptable proof of an employee’s vaccination. Self-attestations of vaccination status that were collected prior to November 4, 2021, are acceptable.  However, going forward, self-attestations are only acceptable in narrow circumstances and with specific representations from the employee. 

  • Support vaccination by providing employees with paid time off for each shot the employee receives, up to a maximum of four hours per shot. The employer must also provide employees with “reasonable” paid sick leave for missed work due to any side effects. 

  • Implement a policy that requires employees to promptly report to the employer a COVID-positive test result or diagnosis. The employer is then required to immediately remove the individual from the workplace until the “return-to-work” criteria have been met.

  • Ensure employees who are not fully vaccinated wear a face covering indoors at all times, except in limited circumstances (such as when alone in a room with a closed door, while eating and drinking, or when health and safety reasons prevent wearing a face covering).

  • Provide employees with information on the federal ETS; workplace policies and procedures implementing the requirements; the CDC’s information on vaccine efficacy, safety, and the benefits of being vaccinated; protections against retaliation and discrimination; and the laws that provide for criminal penalties for knowingly supplying false statements or documentation.

The new federal OSHA ETS gives employers 30 days (until December 4, 2021) to comply with the vaccine mandate and other general requirements, and 60 days (until January 4, 2022) to implement weekly testing.

The federal OSHA website contains helpful FAQs, policy templates, fact sheets on workers’ rights, the penalties for providing false information, as well as a social media toolkit. 

California Employers Have Additional Considerations

First, while California employers will have to comply with the health and safety provisions of the new federal OSHA ETS, they may have additional time to do so.  This is because California, like 21 other states, has a federally-approved state occupational health and safety plan.  As a result, Cal/OSHA has up to 30 days to implement its own COVID standards that are at least as protective as the federal ETS.  We expect Cal/OSHA will soon publish its own version of these new federal requirements, which may even include somewhat stricter standards.  These standards may (or may not) alter the effective date of the new requirements.     

Second, California employers must also consider how existing California law – including its wage-and-hour laws – layer on top of the federal OSHA requirements.  For example, the federal OSHA ETS does not require employers to pay for the cost of testing.  However, the California Labor Commissioner has instructed employers that they are required to pay for mandatory COVID testing, consistent with California Labor Code section 2802.  Likewise, the federal OSHA ETS does not require employee compensation for time spent getting COVID tested, yet California law may require this in certain circumstances.  Moreover, only California’s ETS requires “exclusion pay” for workers excluded from the workplace due to COVID-19 infection or workplace exposure.

What This Means

California employers with 100 or more employees should begin making preparations to comply with the federal OSHA’s new vaccine/testing mandate, which Cal/OSHA will likely soon adopt as part of its own ETS.  Employers will also need to be ready to adapt to any additional and/or stricter rules that Cal/OSHA may include in its revised ETS.   

The key initial decision will be whether to make vaccination mandatory for all employees or to allow employees to choose between vaccination or weekly testing.  This decision poses a bouquet of costs and benefits, including potential accommodation obligations for disabilities and religious beliefs.  Please contact any Paul Plevin attorney who can assist you with this analysis.    

AUTHORS

Camille Gustafson | Denise Brucker | Mike Sullivan | Joe Connaughton

For more information, please contact any Paul, Plevin attorney by calling (619) 237-5200.