Hunton Employment & Labor Perspectives

Employers with 100 or more employees must implement mandatory vaccination policies by early December under the Emergency Temporary Standard released by OSHA.

Employers can exempt employees from the mandatory vaccination policy only if the employer also maintains and enforces a policy that requires those employees to wear face coverings at work and submit to regular COVID testing.

Here are the key provisions of OSHA’s emergency rule, which employers must comply with by early December, subject to legal challenges:

• Employers must maintain written mandatory vaccination policies that apply to all employees except for those with medical contraindications, medical reasons for a delay in vaccination (i.e. previous antibody treatment that requires delay) or employees who are “legally entitled” to reasonable accommodations for disability or religion
• If employers wish to exempt certain employees from the mandatory vaccination requirement, then the employer must enforce a written policy for those employees to provide proof of regular COVID testing (generally, at least once a week) and to wear a face covering at work
• Employers must require and maintain documented proof of an employee’s vaccination status. Acceptable forms of documentation include vaccination cards, vaccine records from doctors or pharmacies, or other similar medical records
• If employees cannot provide documented proof of vaccination status, they can sign a document attesting to their vaccination status, but must also include a statement that a false statement may be punishable by criminal penalties
• Employers must provide up to 4 hours of paid time off to allow employees to receive their COVID vaccination
• Employers must provide reasonable time and paid sick leave to employees to recover from symptoms of each vaccine dose
• If employers elect to allow the testing option, then employees must be tested at least once a week if they report to the workplace on a weekly basis. Employees must provide their test results to the employer, and the employer must maintain the results.
• Self-administered and self-read at-home tests are not acceptable to meet the testing requirement, unless they are proctored by an employer, doctor or teledoc. At-home sample tests that are sent off to a lab for analysis are acceptable.
• If unvaccinated employees do not report to work weekly, but report less frequently, they must be tested within 7 days of coming to the workplace and provide the test results to the employer when they return.
• Employers are not required to pay for the cost of testing unless another state or local law applies to require such payment. Many states require employers to pay for the cost of medical testing, so employers should check the law in their states and localities.
• If unvaccinated employees do not provide their test results to employers on time, they cannot come to work.
• If an employee tests positive for COVID, the employer should not require that employee to continue testing for the subsequent 90 days after the positive test.
• Unvaccinated employees must wear face coverings while at the workplace. Exceptions are limited to when an employee is in an office by themselves with floor-to-ceiling calls and a closed door; for limited times when eating or drinking; when wearing more protective equipment like a respirator or surgical mask; or if the face covering creates a greater hazard for the employee.
• Employers cannot prohibit employees, visitors or customers from wearing a face covering voluntarily.
• Employers must permit employees to wear respirators if they elect to do so.
• Employer must provide employees with information about the ETS, information about the efficacy, safety and benefits of vaccination from the CDC (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html), the anti-retaliation provisions of the OSH Act and its regulations, and the potential for criminal penalties for submitting false information.
• Employers must be prepared to provide OSHA with their written vaccination policy within 4 hours of a request; and all other records required to be kept by the ETS on the next business day after a request. Employers must also provide their total number of vaccinated employees and their total number of employees at the relevant worksite within 4 hours when requested by OSHA.

The ETS requires employers to comply with most aspects of it within 30 days from its publication in the Federal Register.  If employers elect to allow for the testing exemption to mandatory vaccination, then they must comply with those provisions within 60 days of publication of the ETS in the Federal Register.

Overall, the much-anticipated ETS contains detailed, comprehensive requirements for employers.  The recordkeeping requirements associates with the vaccination mandate are particularly detailed and employers should review them closely.  The option on whether to allow for a testing opt-out lies with the employer – an opt-out is not required by the terms of the ETS – subject to potential collective bargaining obligations in a unionized setting.  An employer also can permissibly have a “hard mandate” requirement where the only exceptions are those legally required for religious, medical or disability accommodation.

Hunton Andrews Kurth will continue to monitor statements and guidance from OSHA on how it intends to implement the ETS.  For now, employers should begin the process of drafting their written vaccination policies and consider whether they want to allow for a test-out option for their employees.