OSHA ISSUES VACCINE AND TESTING RULES FOR LARGE EMPLOYERS

 In Blog

Updated Nov. 22, 2021

At the moment, OSHA has suspended implementation and enforcement after the ETS was stayed by a federal appeals court. Next the 6th U.S. Circuit Court of Appeals will hear the case and decide whether to uphold or end the stay ordered previously by the appeals court. This court was chosen randomly by lottery since similar suits were filed in so many courts. The fate of the ETS may ultimately be decided by the Supreme Court.

While we wait for the legal process to unfold, employers should still develop their strategy for implementing the ETS and prepare their policies now.

In September, President Biden announced expanded vaccination and testing requirements for large employers with more than 100 employees, as well as healthcare workers and federal employees.

On Nov. 4, the Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) providing details for large employers.

Here’s what it says:

Unvaccinated employees must be tested weekly beginning January 4, 2022

By Jan. 4, employers with 100 or more employees must require their employees be fully vaccinated against COVID-19 or show a negative COVID-19 test result each week. OSHA anticipates the ETS will be in effect for six months, though the agency will continue to monitor COVID-19 trends and update the timeline, if necessary.

All other requirements including face coverings requirement go into effect Dec. 6

Employees who are not vaccinated must wear a mask at all times when indoors at the workplace by Dec. 6, 2021. This is also the date by which employers must have a roster with the vaccination status of all their employees.

Employers must provide paid time off for vaccination

Employers must pay employees up to four hours to get the vaccine and also provide up to two days of paid sick leave if the employee needs time to recover from side effects of vaccination.

Employers can set a cap on paid leave available to employees. OSHA considers two days to be a reasonable time for employers to offer employees.

Employees, NOT employers, pay for testing

Employers are not responsible for offering testing to employees or paying for testing. (However, in some cases where there is a collective bargaining agreement or other state laws that apply, employers may have to pay for testing.)

100-employee threshold is counted on a company-wide level

Employees are counted across the entire business, not on the individual location or worksite level. All employees, including part-time employees and employees who work from home, count towards the threshold.

Employers with fluctuating employee counts should go by ETS date

Employers who have 100 employees as of the date of the ETS, November 5, 2021, will be covered by the standard. If the organization’s employee count falls below 100 at a later date, the business is still covered by the emergency standard for the time it remains in effect.

If the employer does not have 100 employees on Nov. 5 but crosses the 100-employee threshold while the ETS is in effect, they will be covered.

Reasonable accommodations and exemptions are required with vaccination policies

Employers must make exceptions to their vaccination policy for employees who have a disability or sincerely held religious belief that conflicts with vaccination, or who have a medical reason that prevents them from getting vaccinated or requires them to delay vaccination.

Written vaccination and testing policy required

Employers must have a written policy that is shared with and easily accessible to all employees. The policy must include a description of vaccine and testing requirements, exemptions and accommodations, paid time off for vaccination, process for employees who test positive, mask requirements, and more. Anthros will provide more information on this to clients covered by the mandate.

Employers must keep roster of employees’ vaccination status and proof of vaccination records

Employers must keep a roster that lists the vaccination status of all employees and if they received a medical or religious accommodation.

For proof of vaccination, employers can ask to see and make a copy of the employee’s vaccination record card, or they can allow employees to provide a digital copy, such as a photograph or scan of the vaccination card. Employers must keep the physical or digital record on file.

Vaccination records and rosters are confidential medical information

These must be treated as confidential medical records. They must be stored separately from an employee’s regular personnel file and cannot be shared with other employees.

Unvaccinated employees who work from home don’t need to provide weekly test results

Employees who are not vaccinated and who do not come to the workplace or interact with customers or coworkers do not have to get tested weekly.

If an employee who primarily works from home has to report to the workplace at any time, that employee must get tested within 7 days of being in the workplace.

Employers must keep test result records

Employers must keep records of employees’ test results and treat them as confidential medical records. However, they are only required to keep these records while the ETS is in effect.

Over-the-counter tests can be used but require observation

An employee can satisfy the testing requirement with an over-the-counter test; however, the test “may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”

Both rapid and PCR diagnostic tests are acceptable.

Employees with positive COVID-19 diagnosis can’t be in workplace

Employees must notify their employer immediately if they test positive for COVID-19. The employer must immediately remove the employee, whether vaccinated or unvaccinated, from the workplace.

The employee can’t return until meeting the CDC’s isolation guidelines and criteria for when it’s safe to be around others.

Health care workers must be vaccinated and have no testing opt-out

The Centers for Medicare & Medicaid Services also released a rule that covers all health care facilities that receive federal funding from Medicare or Medicaid. This rule applies to clinical and non-clinical staff and will cover approximately 17 million health care employees.

Health care workers must be fully vaccinated by Jan. 4, 2022, and there is no option for weekly testing.

Federal workers and contractors also required to be vaccinated

As previously announced, federal employees must be vaccinated by Nov. 22, 2021. The deadline for federal contractors to be vaccinated is Jan. 4, 2022. These employees do not have a weekly testing option.

OSHA has provided comprehensive compliance resources for covered employers including a list of FAQs.

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