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Friday, November 5, 2021

OSHA Requires Vaccines or Testing For Employees of Large Employers

 OSHA has issued an emergency temporary standard to address COVID in the workplace. This standard is in addition to the previously-issued guidelines on mitigating COVID. The emergency standard applies only to workplaces with 100 or more employees, whereas the guidelines apply to all employers. However, the standard is mandatory and the guidlines are just recommendations for best practices. A summary of the standard is here.

When does it start: I keep seeing articles saying the standard doesn't start until January 4, but I believe this is only partially correct. It says this about when it starts:

The ETS is effective immediately upon publication in Federal Register [this will be November 5]. To comply, employers must ensure provisions are addressed in the workplace by the following dates: 

  • 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
  • 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination 
So, as I read this, all requirements other than the testing kick in on December 5, and the testing requirement starts January 4.

Preemption: This standard preempts state and local laws to the contrary. So it should immunize employers from Florida and other states' penalties for demanding proof of vaccines.

No retaliation or discrimination: Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness; from discriminating against employees for exercising rights under, or as a result of actions required by, the ETS; and from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.

Here's what the standard requires no later than December 5:

Vaccine policy: Employers must have a mandatory vaccine policy that allows employees to opt out, but requiring employees opting out to be tested weekly and to mask.

Vaccine status: Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

Paid time off: Employers must give 4 hours paid time off to obtain the vaccine and "reasonable" paid time off/sick leave to recover from side effects of the vaccine.

Notification of positive test: Employers must: (1) require employees to promptly provide notice when they receive a positive COVID19 test or diagnosis; (2) immediately remove any employee with COVID from the workplace, regardless of vaccination status; (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Masks for unvaccinated: Employers must require unvaccinated employees to wear masks that cover both nose and mouth when indoors or when occupying a vehicle with another person for work purposes. A face shield can be worn in addition to a mask, but not instead of. The employee can wear a respirator instead of a mask.

No mask prevention: Employers must allow any employee, customer, or visitor, vaccinated or not, to wear a mask unless a mask would create a serious workplace hazard such as interfering with the functioning of equipment.

Information to employees: Employers must provide employees, in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know AboutCOVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Records available to employees: Employers must make available to the employee or a representative the employee's vaccine documentation and test results. Even more interesting, employers have to make available to employees or representatives the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at that workplace.

Here's what the standard requires no later than January 4:

Weekly testing for unvaccinated: Employers must mandate employees who aren't vaccinated to have weekly COVID testing. Employers do not have to pay for this testing. 

This means that low income employees will have few options, even if they qualify for a disability or religious exemption. The vaccine is free, but testing is not. Employers can voluntarily assume the costs, but don't have to, with exceptions. 

Employment agreements could require employers to pay for testing. Unions may have collective bargaining agreements that require employers to pay, which is another great argument for unionizing. 

There could also be state and local laws requiring employers to pay. Not in Florida, of course, because the Florida legislature and governor aren't about to help employees anytime soon.

For information on what exemptions apply and whether you can be fired for refusing to be vaccinated, see my post Can My Employer Make Me Get Vaccinated?