OSHA COVID-19 Workplace Vaccination or Testing Emergency Temporary Standard
Today, the Occupational Safety and Health Administration (OSHA) released its highly anticipated Emergency Temporary Standard (ETS) regarding a workplace vaccination mandate. The official regulation will be published with The Federal Register on November 5, 2021.
Which employers must comply with the regulation?
The regulation impacts all employers with 100 or more employees at any time while the ETS in effect.
According to OSHA an employer must count each individual employee no matter how many hours they work or where they work. For example, an employer with 50 full-time employees and 50 part-time employees meets the 100 employee requirement. Likewise, an employer who has 75 employees working in an office and 25 employees working remotely from home meets the 100 employee requirement.
The employee count does not include independent contractors, individuals hired through a staffing agency, or those who do not work in the United States.
When counting employees, you count all employees as of November 5, 2021. If you have 100 or more employees as of that date, you must comply with the ETS and must do so going forward even if your count drops below 100. If your employee count is currently below 100 but increases to 100 or more during the time of the ETS, you must comply from that point forward.
What do we need to implement?
Employers need to get their employees vaccinated by January 4, 2022 or implement a weekly testing requirement for those who are not vaccinated. Employers also need to require all employees who are not fully vaccinated to wear a mask by December 5, 2021.
Impacted employers provide written documentation that outlines their vaccination policy to their staff prior to the January 4, 2022 deadline.
Employers must gather appropriate documentation from those who are fully vaccinated. Documentation includes a copy of their vaccination card, medical immunization records, or a copy of an official document from the health care provider that administered the vaccination. All documents are confidential and should be kept in a secure location.
Are there any employees who do not need to follow the policy?
Yes. Employees who work 100% at home or outdoors, do not need to follow the policy. An employee who works at home must not come into the office or interact in-person with co-workers or customers. They cannot be working in a hybrid at-home/in-office situation.
For those working outdoors, they must spend a minimal amount of time in an indoor setting and must not spend time in a vehicle with co-workers. This does not include those working in construction where a substantial portion of the structure is in place, such as walls and ceilings.
What’s required for those who are not vaccinated?
OSHA has outlined what is acceptable and not acceptable regarding testing for those who are not vaccinated. Testing has to be implemented no later than January 4, 2022.
- The test must be done weekly or within 7 days from the previous test. New hires must provide a test result prior to starting. If a positive test is presented the employee must follow the appropriate CDC guidelines.
- Tests used must be FDA approved. The test can be a rapid test (an antigen test), a PCR test (polymerase chain reaction) or over-the-counter (OTC) self testing kits. The ETS allows for the use of OTC self-tests that are observed by employers or authorized telehealth providers. Self-administered and self-read rapid tests are not acceptable under the ETS.
- Testing does not have be covered by the employer.
- Employers must gather appropriate documentation of all test results. All documents are confidential and should be kept in a secure location.
The ETS also requires those who are not vaccinated wear a mask when indoors and when occupying a vehicle with a co-worker. Employees are not required to wear a mask when they are alone in their offices, when eating/drinking, pulling mask down for identification processes, or when they are wearing a respirator or facemask for their work function.
What else do I need to know?
The ETS does outline some requirements for employers when it comes to allowing and paying staff to get vaccinated. These requirements must be in place by December 5, 2021.
- Employers must provide paid time off to employees when they get vaccinated. Employers must provide up to 4 hours of paid time off per vaccination. This time cannot come out of any leave plans you currently have.
- Employers must provide time off for those who have a negative reaction to the vaccination. This leave can be taken out of leave the employee already accrues (sick leave, PTO, etc.).
Employers are required to provide a written policy to all employees prior to the implementation of any processes. This must include information on vaccinations, testing, and face masks.
While legal challenges are likely to come, it is best to start this process to ensure you comply when the regulations take effect. Failure to do so may result in significant fines and penalties.
For more details on the ETS visit OSHA’s website at https://www.osha.gov/coronavirus/ets2.
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