Editor’s Note: At the time of this publication, the United States Circuit Court of Appeals for the Fifth Circuit had granted and upheld a stay of this emergency temporary standard. In consideration of the ongoing legal challenges and the suspension of OSHA enforcement, Part 2 of this blog will not be posted at this time. As this situation develops MEMIC will post more information as applicable.

 

The Occupational Safety and Health Administration (OSHA) has published their second Emergency Temporary Standard (ETS) to address COVID-19 workplace transmission. This ETS was published in the Office of the Federal Register on November 5, 2021. Part one of this two-part blog provides information about the scope, vaccination policy, determination of vaccination status, and what employers are required to do to support employees’ vaccination efforts.

 

Scope

The standard applies to employers with 100 or more employees regardless of the number of employees in multiple locations. It covers workplaces that fall under OSHA’s authority and jurisdiction in the general, maritime, construction, and agriculture industries. Part-time employees should be included in the employee count, but not independent contractors. At construction sites where multiple employers are present, the host employer, the general contractor, and every subcontractor should count only their own employees. OSHA also provides some examples for those businesses using staffing agencies. By using the 100-employee threshold, OSHA estimates the ETS will cover 67% of the private sector’s workforce.

 

The standard does not apply to workplaces covered under the Safer Federal Workforce Task Forces  COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where OSHA’s Healthcare ETS applies. The standard also does not apply to employees who do not report to a workplace or a site where other coworkers and/or customers are present, or those employees working from home or who work exclusively outdoors. The intention of the standard is to provide protection to workers that interact in an indoor setting.

 

Vaccination Policy

The standard requires that covered employers establish, implement, and enforce a written mandatory vaccination policy. For purposes of this standard, a mandatory vaccination policy means that it requires each employee to be fully vaccinated and vaccination of new employees as soon as practicable. Exceptions include when the vaccination is contraindicated, the employee requires a delay in vaccination due to medical reasons or who are legally entitled to a reasonable accommodation due to a disability, sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

 

Employers can be exempted from the written mandatory vaccination policy by establishing, implementing, and enforcing a similar written policy that allows employees to choose to be vaccinated or provide proof of regular COVID-19 testing and wear a face covering.

 

Determination of Employee Vaccination Status

Employers must determine the vaccination status of each employee by requiring acceptable proof of vaccination. Acceptable vaccination proof may include:

• a record of immunization from a healthcare provider or pharmacy,
• a copy of the COVID-19 Vaccination Record Card,
• a copy of medical records documenting the vaccination,
• a copy of immunization records from a public health, state, or tribal immunization information system, or
• a copy of any other official documentation that contains the type of vaccine, date of administration, and the health care professional or clinic that administered the vaccine.

Employees who are vaccinated but are unable to produce acceptable proof of vaccination may provide a signed and dated statement. In this statement, the employee should:

• attest the vaccination status (fully vaccinated or partially vaccinated),

• attest that they have lost or are otherwise unable to produce proof required by the standard; and
• 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.”

The statement should also include (to the best of their recollection) information about the type of vaccine, administration dates, and healthcare professional or clinic that administered the vaccine(s). Those employees who do not provide an acceptable proof of vaccination should be treated as not fully vaccinated for the purposes of the standard.

In terms of employee records, the employer must maintain a record regarding the employees’ vaccination status and must preserve acceptable proof of vaccination for each employee who is vaccinated (fully or partially) in addition to a roster of each employee’s vaccination status. Although these records are considered medical records under 1910.1020, they are not subject to the retention requirements of this standard (1910.1020(d)(1)(i)) but must be preserved while the standard remains in effect.

Employer support for the employee vaccination
Employers are required to support COVID-19 vaccination by:

• providing a reasonable amount of time for each of the employee’s vaccination dose or doses, and
• provide up to 4 hours of paid time, including travel time at the employee's regular pay rate for this purpose.

Additionally, the employer must provide time and paid sick leave to recover from side effects following a vaccination dose.

In part two of this two-part series, we will cover what employers should do to support COVID-19 testing for employees who are not fully vaccinated, what to do when an employee reports a positive COVID-19 test, face coverings, training, and the OSHA reporting requirements. Additional information can be found on the OSHA ETS website.