OSHA Releases New Vaccine or Test Requirement
Yesterday, the Occupational Safety and Health Administration (OSHA) issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
By January 4, 2022, covered employers must implement a policy either:
• requiring workers to be vaccinated (other than exempt workers or those who have a medical or religious accomodation); or
• allowing workers to choose either to be vaccinated or get tested for COVID-19 on a weekly basis.
There are three exceptions to the workers that must be covered by the vaccination policy requirements: (1) employees that do not report to a workplace where coworkers or customers are present; (2) work from home, or (3) work exclusively outside. It is unclear still but truck drivers may fall into the first exception. Workers who have already recovered from COVID-19 are covered by the ETS.
The ETS covers employers that have 100 or more employees at any time during the effectiveness of the ETS. It includes all employees in the corporate family and includes part-time employees. OSHA is seeking public comment on the capacity of smaller employers to comply with the ETS’ provisions.
Employers must verify employee vaccination status by collecting proof through a vaccination card, medical record, record from vaccine provider, other official documentation or an attestation.
Employers must provide employees reasonable paid time (up to 4 hours) to receive each vaccine dose. Employers must also provide a reasonable amount of time and paid sick leave for employees to recover from side effects of receiving the vaccine.
Employees who are unvaccinated must mask while working indoors or when in a vehicle with other people. The masking and time off to vaccinate requirements take effect on December 5, 2021.
For employees that are not fully vaccinated, employers must ensure testing occurs:
• at least once every seven days if they go to work at least once every seven days where coworkers or customers are present.
• within seven days of returning to work if the worker does not report to a workplace once in seven days.
Employers are not required to pay for testing, but have the option to pay.
Employers have the burden of record keeping for vaccines and testing of their employees. Employers must report any work-related COVID-19 fatality within 8 hours of learning about it and must report any work-related COVID-19 hospitalization within 24 hours of learning about it.
OSHA can impose penalties as high as $13,653 per violation for serious violations. It can impose penalties as high as $136,532 for willful or repeated violations.
ETS preempts state and local laws that cover employee vaccines, testing or face coverings at work. Arizona Attorney General Mark Brnovich has reported that he will file suit to challenge the mandate.
You can learn more by participating in the Small Business Legislative Council (SLBC) webinar on Thursday, November 10, 2021 at 12 pm EST.
This live webinar will be open to all EMA state associations and its members, free of charge.