Did I just catch a sneak peek at the forthcoming OSHA vaccine/testing mandate?


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Yes, I think I did. So, I’ll let you in on it.

In September, President Biden signed an Executive Order requiring federal employees to get vaccinated as a condition of employment. This week, the federal government updated its Frequently Asked Questions for Vaccinations for federal sector workers.

The new guidance is specific to federal workers. But, it sends strong signals about how OSHA may draft its forthcoming Emergency Temporary Standard to enforce the White House mandate that private employers with 100+ employees either mandate vaccinations or test their employees regularly.

Below, I’ve quoted directly from the FAQ but changed all references from government agencies to private companies.

Q: Must [companies] require documentation from employees to prove vaccination status?

A: Yes, [companies] must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status. Employees may provide a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation containing required data points. The data that must be on any official documentation are 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). Employees must certify under penalty of perjury that the documentation they are submitting is true and correct.

Employees may provide a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the information outlined above. In requesting this information, [companies] should comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973.

Q: Can an employee provide a recent antibody test in order to prove vaccination status?

A: No. An employee must provide the required documentation for proof of vaccination. A recent antibody test cannot be used to prove vaccination status.

Q: Should [companies] establish a date by which employees should notify [companies] that they are seeking a [medical condition or religious accommodation] to the requirement to not be fully vaccinated?

A: Yes. In order to ensure that [companies] can fully understand the effect of accommodation requests on their operations and to seek to ensure timely review of requests for an accommodation, [companies] should establish a date by which employees should as a general matter notify [companies] that they are seeking a legally required exception to the requirement to be fully vaccinated. Employees can submit requests for an exception after the date established by the [company].

Q: Should [companies] provide employees who are seeking a legally required exception to the vaccination requirement with a form?

A: Yes. [Companies] can refer to the following templates to develop a form for employees who are seeking an exception based on a medical condition or based on religion. The information on the forms may be used by the [company] to help determine whether the employee is entitled to an accommodation. The company may also ask for other information as needed to determine if the individual is legally entitled to an accommodation…

[Note: If OSHA permits the use of forms to document accommodation requests, work with outside legal counsel to modify the ones hyperlinked above.]

Q: If an employee is not fully vaccinated due to a legally required exception, what protocols should that individual follow?

A: Generally, employees would need to follow applicable masking, physical distancing, and testing protocols for individuals who are not fully vaccinated, as well as applicable travel guidance…There may be circumstances in which a [company] determines that the nature of an employee’s job responsibilities requires heightened safety protocols if they are provided with a legally required exception. In some cases, the nature of the employee’s job may be such that a [company] determines that no safety protocol other than vaccination is adequate. In such circumstances, the [company] may deny the requested accommodation.

It remains unclear when OSHA may release the ETS. But, this FAQ can help give you a head start on planning for it.

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