I have a confession. I have not read all 490 pages of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
However, I did read the updated regulations (starts on page 473) and listened to the Occupational Safety and Health Administration (OSHA) webinar. And, fortunately, OSHA has synthesized 490 pages into some helpful fact sheets (here, here, here, here, and here), a detailed FAQ, a Vaccination Policy Sample, a Vaccination or Testing and Face Covering Sample, and even a social media toolkit.
Come Friday, November 12, 2021 at Noon ET, I’ll be a veritable walking OSHA ETS encyclopedia. That’s when my partners Amy Epstein Gluck, David Renner, Sid Steinberg, Gordon Berger and I will be back on Zoom to dig deeper into the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) and answer all of your questions in a way that doesn’t involve giving any actual legal advice or creating an attorney-client relationship.
I have a feeling that space may be limited. Call it a hunch.
In the meantime, I’m guessing that there may be a blog post or two today detailing some of these OSHA-ETS items. Amy has a thorough but easy-to-digest write-up here.
Below, I want to highlight some items from the new vaccination and testing rules on which you should focus now in preparing to comply.
1. Develop a policy.
The ETS requires all covered employers to have a written mandatory vaccination policy within 30 days. Here is a sample. (I suggest that you have some medical and religious accommodation forms ready to go too. I’ve developed many for clients.)
Alternatively, if your business is going to allow employees the option to test weekly instead of getting vaccinated, you can establish, implement, and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to
choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.
2. Educate employees.
Within 30 days, covered employers must provide each employee information about the ETS; workplace policies and
procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation. Lots of this information is on the OSHA website already in the form of charts and other handouts. So, check it out and plan accordingly.
3. Figure out who is vaccinated.
Within 30 days, all covered employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of vaccination status.
Consider now how you will accomplish this task. Acceptable forms include: (i) the record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal
immunization information system; or (v) a copy of any other official documentation that contains the type of vaccine
administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
What happens if your employee loses their vaccination record? No worries, get a signed statement from them attesting to their vaccination status and that they have lost and are otherwise unable to produce proof of vaccination. But make sure to include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
4. Provide paid time off to support employee vaccination.
The ETS requires covered employers to provide “a reasonable amount of time to each employee for each of their primary vaccination dose(s); and (ii) provide up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose.” These employers must also provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose.
Employers cannot require employees to use personal time or sick leave to get vaccinated. OSHA is concerned that employees forced to use their sick leave or vacation leave for vaccination would have a disincentive to gaining the health protection of vaccination. Employers must pay employees for up to four hours of time at the employee’s regular rate of pay. But, if an employee gets vaccinated outside of work hours, such as on a Saturday, you need not grant them reasonable time for vaccination.
Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement. The reasonable time and paid sick leave that employers are required to provide employees to recover from side effects experienced, is in addition to the reasonable time and four hours of paid time to receive each primary vaccination dose also required by the standard. If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose.
Employees who elect to get tested instead are on their own for the cost of the test. However, you will have to pay non-exempt employees for the time spent getting testing on work time. Your mileage may vary for time spent testing outside of work hours.
5. Set up a system for tracking COVID-19 tests.
Within 60 days, most unvaccinated employees will need to provide a negative COVID-19 test result at least weekly. (When an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis). If an employee does not provide documentation of a COVID-19 test result, the employer must keep that employee removed from the workplace until the employee provides a test result.
Plus, covered employers must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider.
So, you’ll need a system to track and calendar COVID-19 test results, if you choose to allow employees to test instead of vax.
6. Make records available to your employees.
In 30 days, you’d better be able to respond lickety-split to an employee’s request for information.
Like what, you ask?
By the end of the next business day after a request, the employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and to anyone having written authorized consent of that employee.
By the end of the next business day after a request by an employee or an employee representative, the employer must make available to the requester the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Figure out a system now for responding promptly to these inevitable employee requests.
7. Purchase face coverings (or don’t).
With limited exception, anyone who is not vaccinated must wear a face covering when indoors and when occupying a vehicle with another person for work purposes. You don’t have to supply the face coverings. But, it probably makes sense that you do.
This rule takes effect in 30 days.
And if you made it this far…
Have a nice weekend.