{"id":8907,"date":"2021-11-14T18:35:15","date_gmt":"2021-11-14T18:35:15","guid":{"rendered":"https:\/\/affinityhrgroup.com\/?p=8907"},"modified":"2023-11-27T20:24:54","modified_gmt":"2023-11-27T20:24:54","slug":"white-paper-osha-vaccine-mandate","status":"publish","type":"post","link":"https:\/\/theworkplaceadvisors.com\/white-paper-osha-vaccine-mandate\/","title":{"rendered":"White Paper: OSHA Vaccine Mandate"},"content":{"rendered":"

Notice<\/strong><\/p>\n

On November 6, 2021, the 5th US Court of Appeals issued an injunction<\/a><\/em> based on a legal challenge filed in its courts. On November 12, 2021, the 5th Circuit ruled that this injunction applies country-wide and has ordered OSHA to “take no steps to implement or enforce…until further court order.” Therefore, OSHA has currently suspended such activities while this and several other legal challenges work their way through the various court systems. If this or any other court confirms or overturns the ETS, no one should consider it the final say until a decision is ultimately issued by the US Supreme Court.<\/p>\n

Even with this latest development, Affinity HR Group still recommends that you start preparing for how your company will implement and enforce this ETS if it proceeds as released or in some variation. However, we do not recommend expending too much time or expense until the US Supreme Court has ruled.<\/p>\n

Background<\/strong><\/p>\n

The Occupational Safety and Health Administration (OSHA<\/em>) <\/a>was created \u201cto ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.\u201d Pres. Biden\u2019s administration believes that protecting workers from COVID-19 falls under this definition, thereby giving OSHA the power to implement any rule with the purpose of protecting employees.<\/p>\n

On November 5, 2021, OSHA published an emergency temporary standard<\/a><\/em> establishing the requirement to \u201cminimize the risk of COVID-19 transmission in the workplace\u201d and to \u201cprotect unvaccinated employees of large employers from the risk of contracting COVID-19 in the workplace.\u201d It became effective upon its publication and will be in effect for six months but may become a permanent rule if needed.<\/p>\n

The ETS mirrors the expectations outlined by Pres. Biden in September when he announced the \u201cPath Out of the Pandemic<\/a><\/em>\u201d in September 2021. Analysis of the vaccine mandate indicates that it will lead to the vaccination of 23 million people, preventing over 6,500 deaths and over 250,000 hospitalizations.<\/p>\n

OSHA also issued requirements that, in states that have their own OSHA entities, state plans must be developed that meet these standards at a minimum. If they do not, OSHA may implement these requirements in those states as well.<\/p>\n

Many of the legal challenges argue that COVID-19 is not a workplace-specific danger so OSHA does not have the authority to implement this mandate. Other challenges argue that OSHA does not have the right to impose requirements that are prohibited under the laws of certain states.<\/p>\n

Covered employers and employees<\/strong><\/p>\n

This ETS applies to all private employers with 100 or more employees in the US except federal contractors and subcontractors or healthcare employees as they are subject to different, stricter rules. To count employees, private employers must include all employees in the US even if they are in multiple locations or states. They must also count all employees regardless of their classification or schedule, including full-time, part-time, temporary, and seasonal employees; minors must also be counted, even though they may need parental consent to be vaccinated. Independent contractors and employees placed through a staffing agency do not count toward this total.<\/p>\n

While the ETS is in effect, an employer is covered if they have 100 employees on or after November 5, 2021. Once an employer is covered, they remain covered until the standard expires even if they fall below the 100-employee threshold.<\/p>\n

If an employer has 100 or more employees, this ETS applies to all of their employees except those who do not report to a workplace where other individuals (i.e., co-workers or customers) are present; work from home; or work exclusively outdoors. Even if there are employees who meet the criteria to be exempt from the vaccine mandate, they must be counted toward the total employee number.<\/p>\n

OSHA focused this ETA on large employers with the expectation that they have better capacity to administer requirements that may prove difficult or prohibitive for smaller employers. However, OSHA is studying options that could be applied to smaller employers without causing too much disruption so this may be coming in the future.<\/p>\n

What is required<\/strong><\/p>\n

This ETS includes multiple standards not just about vaccines but also about testing, masking, reporting and record-keeping. All of these standards are effective December 5, 2021, except the testing requirement which is effective January 4, 2022.<\/p>\n

By December 4, 2021:<\/em><\/strong><\/p>\n

Develop and implement compliant policy: <\/strong>Whether you decide to implement a vaccine-only requirement or a vaccine policy with a testing and face covering option, you must develop a policy that meets OSHA\u2019s standards. While employers can draft a customized policy, OSHA has provided a template of each version which includes everything needed to be compliant and which the employer can customize with their company information and state laws. The OSHA template can be found here: OSHA – Mandatory Vaccine Policy<\/a><\/em> and OSHA \u2013 Vaccine, Testing, and Face Coverings Policy<\/a><\/em>. The policy should be retroactive to November 5, 2021 or as soon as you become a covered employer.<\/p>\n

Tracking: <\/strong>Employers must develop and implement a method for tracking employees who are fully vaccinated, partially vaccinated, or unvaccinated. If they are unvaccinated, they must also note if it is due to medical accommodation, religious accommodation, or neither. Employers must also require and retain copies of proof of vaccination. The tracking and records must be kept confidential as with all medical information.<\/p>\n

Vaccine requirements: <\/strong>Employers must draft and implement policies requiring all employees to receive a COVID-19 vaccine that is approved by the FDA<\/a><\/em> (currently Pfizer, Moderna, or Johnson & Johnson), WHO<\/a><\/em>, or given as part of a clinical study and to provide official documentation of their vaccine status. Since the vaccine is free to everyone, employers do not need to pay for the vaccine. Employers must allow exceptions for certain medical or religious reasons (see below). Employers also have the option to offer a testing alternative (see below).<\/p>\n

Paid time off to receive vaccine: <\/strong>Employers must draft and implement policies granting employees up to four hours of paid time off to receive each dose of the COVID-19 vaccine during working hours. Employers do not need to pay for any additional costs such as transportation costs or travel time. This must be paid at the employee\u2019s regular rate of pay and cannot be deducted from any paid time off the employee may have available to use. While the employer cannot dictate when the employee takes off to get vaccinated, if an employee chooses to get vaccinated outside of work hours, the employer does not need to provide pay for this time off.<\/p>\n

Time off to recover from side effects of the vaccine:<\/strong> Employers must draft and implement policies granting employees reasonable paid time off to recover from any side effects of receiving the vaccine. The employer may require employees to use any paid time off available to them for the purposes of sick time; however, they cannot require employees to use any time off not intended for sick time such as that time off designated as \u201cvacation\u201d or \u201cpersonal.\u201d The employee cannot require the employee to borrow time off that will be available in the future.<\/p>\n

This time off must be \u201creasonable\u201d which according to the CDC could be one, two or \u201ca few\u201d days. OSHA presumes making two days available for recovery per dose will be sufficient. However, employers may want to extend this by a couple of days as a reasonable accommodation.<\/p>\n

Reasonable accommodation: <\/strong>Employers must allow reasonable accommodations for those with documentable medical and\/or religious reasons preventing them from getting vaccinated. The accommodations could include a leave of absence, working from home, or simply following the policies for unvaccinated employees, whatever can be provided in accordance with the documentation and without undue hardship on the company.<\/p>\n

Employers should have a consistent policy and procedure for processing accommodation requests. This should include a dialogue between employer and employee, documentation requirements, a limited number of people who can make the determination, and confidentiality of all information received. (Most managers and supervisors only need to know the accommodation, not the reasons why the employee needs it.)<\/p>\n

Employers must make a good-faith effort to implement the vaccine mandate which means they cannot accept any and all requests for reasonable accommodation without following a legitimate procedure to ensure it is warranted. Not only would this violate the ETS but it would create a difficult precedent for the employer to meet when an employee requests an accommodation for another reason.<\/p>\n

You can find more guidance on reasonable accommodations here or on the EEOC website<\/a><\/em>.<\/p>\n

Face coverings<\/strong>: Employers must require all unvaccinated and partially-vaccinated employees to wear approved face coverings while indoors or in a vehicle with another person due to work. Employers must allow any employee to wear a face covering if they choose to, regardless of vaccination status. Employees must also be allowed to wear an approved respirator instead of a face covering if they choose too. Employers are not required to pay for face coverings or respirators for employees who need to or choose to wear them unless required under a current agreement such as a collective bargaining agreement.<\/p>\n

Notification of positive test result<\/strong>: Employers must draft and implement policies requiring any employee (unvaccinated or vaccinated) to \u201cpromptly\u201d report their positive result or diagnosis of COVID-19 to the company. Those employers must also implement procedures to immediately remove a COVID-19-positive employee from the workplace, again regardless of vaccination status. These employees must be kept out of the workplace until they meet the criteria<\/a> <\/em>for returning to work as currently defined by the CDC and\/or state authorities.<\/p>\n

Once an employee tests positive for COVID-19, employers must also inform other employees with whom the positive employee may have been in close contact within the 14 days prior to diagnosis. Again, following CDC and state guidelines, employers must take action appropriate upon notification from the health department or the employee\u2019s health care provider based on if the employee is vaccinated or unvaccinated.<\/p>\n

If an employee tests positive using an antigen test but has no symptoms, they may take a Nucleic Acid Amplification Test (NAAT) test. If that result is negative, they may return to work. However, if they test positive on a NAAT test they must follow the isolation protocols regardless of whether or not they display symptoms.<\/p>\n

Employee confidentiality must be maintained throughout the process.<\/p>\n

Inform employees<\/strong>: Employers must provide the following information to all employees in clear language and at a literacy level that they can understand using the normal methods of distribution:<\/p>\n