On November 5, 2021, OSHA will publish a new emergency temporary standard (“ETS”) requiring all businesses with more than 100 employees who are not already subject to a vaccine mandate to either require that all employees be fully vaccinated against COVID-19 or implement a weekly COVID-19 testing requirement for any employees who are not vaccinated.
Who is impacted by the ETS?
The federal government has already implemented a vaccine mandate for federal employees and federal contractors. These businesses, due to the existing mandate are not subject to the new OSHA standard. Similarly, the Centers for Medicare and Medicaid Services (“CMS”) is implementing an independent vaccine mandate for healthcare workers at facilities involved with CMS. Because the CMS mandate does not allow for the weekly testing alternative, the OSHA standard does not apply to these businesses. Outside of those exemptions, any business regulated by OSHA with 100 employees or more, will be required to comply with the mandate.
What does the emergency standard require of employers?
The emergency standard requires that employers who have 100 employees or more:
- Provide employees with paid time to receive a vaccine and inform them of this option by December 5, 2021;
- Ensure that all unvaccinated employees are aware of and complying with requirements that unvaccinated employees be masked while at the workplace by December 5, 2021;
- Ensure that employees are aware that without evidence of full vaccination against COVID-19 (two doses of Moderna or Pfizer or one dose of Johnson & Johnson), that proof of a weekly negative test will be required starting January 5, 2022; and
- Ensure that any employee who is not fully vaccinated by January 4, 2022 begin to produce a verified negative test on a weekly basis starting January 5, 2022.
- Employers must remove any employee from a workplace who has a positive test or is diagnosed with COVID by a medical provider.
What can employers do to prepare for what is next in this process?
Employers should ensure that they understand what requirements apply to their operations. Workplaces located in states with approved state health and safety plans such as California, Virginia or Utah, may have a delay in implementation as these states determine whether to adopt or modify the standard. Additionally, states with statewide plans or states with plans for state employee health and safety such as New York and Illinois, will be required to implement the emergency standard for state and local government employees. States without state plans will not be required to apply the federal standard to state and local government officials. Currently, the standard only applies to companies with more than 100 employees across the organization, regardless of the number of employees in any given location. OSHA has stated that it intends to expand the requirement if necessary but is taking additional time to assess the impacts on smaller businesses. The January 4, 2022 deadline for employees to be fully vaccinated applies to the OSHA standard, the CMS mandate, and the federal contractor mandate. Employers should also familiarize themselves with any labor contracts or local laws that require employers to provide for the cost of testing.
What about states with prohibitions against vaccine, mask or testing requirements?
In the standard, and the CMS mandate, the agencies have clearly stated that these regulations preempt any inconsistent state or local laws. This preemption includes any laws that ban or limit an employer’s authority to require vaccination, masks, or testing. Complimentary regulation from the Equal Employment Opportunity Commission has clarified that employers are empowered to require employees to provide proof of vaccination or testing but must also maintain employee medical information confidentially. While legal challenges to the standard are anticipated, employers should be ready to comply with the standard when it takes effect in January.
Jackson Kelly’s attorneys continue to follow comments and developments surrounding the standard and any challenges or state specific modifications.