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We also discussed this in our Labor & Employment client alert here.

After much anticipation, OSHA finally issued its rule for mandatory COVID-19 vaccination and testing for certain employers. It is referred to as an emergency temporary standard (“ETS”). While the ETS will be challenged in the courts, employers must still prepare now for implementation as the first deadline for compliance is as early as December 5th. Here is what you need to know:

What’s new?

Covered employers must adopt a vaccination policy that takes one of two forms: (1) mandatory vaccination for all employees; or (2) a policy that gives employees a choice between vaccination or mandatory weekly COVID-19 testing and the required use of face coverings by unvaccinated employees (regardless of the reason why the employee declined vaccination). The rule also allows employers to adopt a hybrid policy that applies the mandatory vaccination provision to only certain employees (e.g., customer facing). Employers with mandatory vaccination policies must still provide exemptions for employees who cannot be vaccinated due to a medical reason, disability or sincerely held religious belief. However, even under a mandatory vaccination policy, weekly COVID-19 testing and required use of face masks still apply to those employees exempted from the policy as a reasonable accommodation.

Which employers are covered?

Any private employers with 100 or more employees performing work anywhere in the United States as of November 5, 2021. Temporary, seasonal or part-time employees count towards this threshold, but independent contractors do not. Interestingly, employees hired through a staffing or temporary agency are only counted as employees for the staffing or temporary agency. They do not count as employees for the company where these individuals might be physically working.

If an employer does not currently have 100 employees, but later hires additional employees to bring it within the threshold, then the ETS applies. However, the converse is not true. If a covered employer drops below this threshold at a later date, they remain covered.

This rule does NOT apply to federal contractors subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. It also does not apply in certain healthcare settings.

Are all employees covered?

No! Only those employees who work indoors in the presence of coworkers or customers are subject to the rule. Employees who work from home or work exclusively outdoors are not subject to any of these requirements. This means these employees are not required to be vaccinated and do not have to participate in weekly testing or wear face masks in the workplace. However, employees who routinely occupy vehicles with other employees as part of their work duties must comply even if their work is otherwise performed outside.

Do I need to pay employees for the time it takes to be vaccinated?

Generally yes. When an employee is vaccinated during normal working hours, the employer must pay for the time it takes the employee to receive each dose of the vaccine, up to four hours per dose. You cannot force an employee to use their accrued paid time off (e.g., sick, vacation, or PTO) to cover the time required to be vaccinated.

However, if an employee chooses to be vaccinated on their day off or outside of regular working hours, then an employer is not required to pay the employee for such time. Employers also cannot force employees to be vaccinated outside of regular working hours to avoid having to pay them for the time it takes to get vaccinated.

What about paid time off to recover from side effects?

You can require an employee to use accrued sick leave or PTO (if you have one combined paid leave policy) to recover from side effects of vaccination. For employees without accrued sick leave or PTO, the employer must provide up to two (2) days of paid leave per dose. If an employer does provide sick leave or PTO but the employee has not accrued enough at the time of vaccination, an employer cannot deduct these days from any future PTO earned. For the employers who have separate sick and vacation policies, you can only require employers to use available sick leave (not vacation time) for recovery from vaccination side effects.

Do employees need to show proof of vaccination? 

Of course they do! They not only need to show you proof, but the employer must retain a copy of the proof provided. Proof can consist of an original, copy or digital image of an official vaccination record.

What about boosters?

Boosters are not covered by this new rule. Employers are not required to mandate or track whether eligible employees receive any recommended COVID-19 booster shots.

Who is required to obtain weekly COVID-19 testing?

A negative weekly COVID-19 test is required for employees to be allowed in the workplace when they are not “fully vaccinated.” Fully vaccinated means that the employee has completed all required doses for their vaccine and it has been at least 2 weeks since they received their last dose. Employees who are in between doses must continue with weekly testing and must wear a face covering until they become fully vaccinated.

Any employee who has tested positive for COVID-19 is not required to undergo weekly testing for 90 days following the date of their positive test or diagnosis. But, such employees must continue to wear a face mask or face covering.

What form of testing is required for the unvaccinated employees?

Generally speaking, testing must consist of an FDA approved test used to detect current infection. Diagnostic tests, such as a PCR or Antigen test, satisfy this requirement. Antibody tests do not. Some over-the-counter antigen tests may also satisfy this requirement provided the test is not both self-administered and self-read. In other words, if you can both take the test and also obtain the results at home, that won’t make the cut unless additional requirements are met.

Who pays for the cost of testing and face masks?

OSHA will not require employers to pay for any costs associated with testing or face masks. However, employer payment for testing may be required by other laws, regulations or collective bargaining agreements. An unanswered question is whether time spent getting tested is compensable for nonexempt employees. We anticipate receiving more guidance on this issue as we get closer to the January 4th deadline. Stay tuned.

What records do I need to keep?

In addition to keeping a copy of the vaccination record, employers must also create a roster of all employees with their vaccination status (e.g., fully vaccinated, partially vaccinated, exemption due to medical or religious reasons, or not vaccinated). This roster must be updated as necessary to reflect new hires or changes in vaccination status.

Employers must also keep copies of all weekly test results for employees not fully vaccinated. The test results, roster and the copies of the vaccination records are all considered medical records, which means they must be kept confidential.

Is it true that I need to provide employees with my company’s vaccination statistics?

Yes, it is. By the end of the next business day after a request by an employee is received, the employer must make available to the requesting employee the aggregate number of fully vaccinated employees in the workplace along with the total number of employees in that workplace. If requested, this information must also be provided to OSHA within four business hours of receipt of the request.

But I already implemented a written vaccination policy? Isn’t that enough?

Probably not. Covered employers must adopt a written policy and provide employees with a copy of this policy. This policy must be provided “in a language and at a literacy level” the employee understands. Employers also must provide information to their employees regarding all of the requirements of this new OSHA rule and attach the CDC document “Key Things to Know About COVID-19 Vaccines.” In addition, employers must inform their employees concerning the related laws and regulations that prohibit discrimination or retaliation, and the criminal penalties for knowingly supplying false statements or documentation. Lastly, employers who have already implemented mandatory vaccination policies will need to update their policies to ensure that they comply with these new requirements.

When does this go into effect?

Sooner than you think! All covered employers must have written policies in effect by no later than December 5, 2021. This means that policies requiring face masks for unvaccinated employees, paid time for vaccination, and use of accrued sick leave to recover from side effects of vaccination must be in place by this date. Those employee rosters also better be ready by December 5th. The weekly testing requirement for employees not fully vaccinated goes into effect on January 4, 2022.

Governor DeSantis has already announced Florida will be challenging these rules in court. Stay tuned for further developments.