OSHA’s COVID-19 Vaccine Mandate: Proactive Measures for Private Employers to Take While the Mandate is Stayed
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On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published 29 C.F.R. 1910, commonly referred to as the “vaccine mandate” and referred to by OSHA as the “ETS on Vaccination and Testing,” which requires private employers with over 100 employees to either mandate employees get vaccinated or undergo periodic testing for COVID-19 (“Mandate”). This article describes the mandate and what employers covered by the mandate can do to proactively prepare for complying with the mandate should it one day be enforced by OSHA.
The OSHA Vaccine Mandate is Not Currently Enforced
Before describing the mandate, it should be noted that, as of the date of this article, the OSHA vaccine mandate is not being enforced. Since its publication, the mandate has triggered numerous lawsuits filed by states pushing OSHA to ultimately announce that it is suspending any enforcement of the mandate until the court cases are resolved.
Even though the mandate is not currently enforced, private employers should be proactive by analyzing possible operational changes in the event that the mandate is implemented.
Vaccine Mandate Overview for Private Employers
Who is covered?
The mandate imposes a myriad of requirements, so first it should be understood which private employers it covers and which it does not. The mandate “covers all employers with a total of 100 or more employees at any time [the mandate] is in effect.” 29 C.F.R. § 1910(b). Because of already enforceable government regulations for federal contractors and healthcare workers, the mandate does not apply to those entities. § 1910(b)(2). Furthermore, the mandate exempts employees who would otherwise be subject to the mandate who do not report to a workplace where other people are present, work from home, or work exclusively outdoors. § 1910(b)(3).
What is a covered employer required to do?
If covered by the mandate, an employer is required to take the following actions
- establish, implement, and enforce a written vaccination policy that either mandates employees get vaccinated or (i) provide the employer with proof of regular testing for COVID-19 and (ii) wear a face covering in accordance with the mandate (described in more detail below),
- inform each employee about (i) vaccine requirements, (ii) COVID-19 vaccine efficacy, safety, and benefits, and (iii) the employer’s written mandatory vaccination policy and procedures,
- determine the vaccination status of each employee,
- require employees to provide acceptable proof of vaccination status (described in more detail below)
- give employees paid time off to get vaccinated,
- give employees paid time off to recover from the side effects of vaccination,
- require employees to notify the employer upon receipt of a positive test result or diagnosis of COVID-19,
- immediately remove employees who receive a positive test result or diagnosis of COVID-19,
- report to OSHA any work-related COVID-19 fatality or hospitalization, and
- maintain records of employee vaccination status and COVID-19 test results.
The items listed above would be required of covered employers regardless of whether the covered employee chooses to get vaccinated.
If a covered employee chooses to get vaccinated, then the employee will be considered “fully vaccinated” under the mandate 2 weeks after completing a COVID-19 vaccine program that is either (i) approved or authorized for emergency use by the U.S. Food and Drug Administration (“FDA”), (ii) listed for emergency use by the World Health Organization (“WHO”), or (iii) administered as part of a clinical trial at a U.S. testing site under certain circumstances. As of the date of this article, the following vaccines have been approved for emergency use by the FDA:
- Comirnaty and Pfizer-BioNTech COVID-19 Vaccine
- Moderna COVID-19 Vaccine
- Janssen (Johnson & Johnson) COVID-19 Vaccine
If an employer’s written vaccination policy does not mandate vaccination but instead allows for periodic testing, and a covered employee participates in periodic testing rather than receiving vaccination as described above, then the employer must:
- ensure that unvaccinated employees periodically test for COVID-19 once every 7 days using a test that is cleared, approved, or authorized by the FDA, in accordance with its instructions, and administered in the presence of at least 1 other person (see 1910(c)(iii)),
- require removal of the employee from the premises for failure to document negative test results or for documenting a positive test result within 7 days of testing,
- maintain medical records in accordance with § 1910.1020 regarding all test results,
- require the employee to wear a face covering that fully covers the employee’s nose and mouth and is replaced when “wet, soiled, or damaged,” and
- require the unvaccinated employee to wear a face covering when indoors or “in a vehicle with another person for work purposes” unless:
- the employee is alone in a room “with floor to ceiling walls and a closed door,”
- for a “limited time” while the employee is eating or drinking, or
- if the employer can demonstrate that wearing the face covering is infeasible or creates a greater hazard.
Miscellaneous Requirements of the OSHA Vaccine Mandate Worth Noting
As explained above, covered employers would be required to take numerous actions if the mandate were to be enforced. In addition to those actions, there are other requirements under the mandate that are important to note.
As described above, covered employers would need to require their unvaccinated employees to wear face coverings. Those face coverings are regulated as well under the mandate, and must:
- completely cover the nose and mouth,
- be made with 2 or more layers of “breathable fabric that is tightly woven,”
- be secured to the head with “ties, ear loops, or elastic bands that go behind the head,”
- fit “snugly” over the nose, mouth, and chin with no large gaps, and
- be a solid piece of material with no valves or openings.
The mandate specifies that if “gaiters” are worn, they must have 2 layers or be folded in such a way to make 2 layers when worn.
The mandate would require covered employers to not prevent any employee from voluntarily wearing a face covering unless there is a serious hazard presented by doing so, and not prevent an employee from wearing a respirator in lieu of a face covering. Finally, the mandate would require covered employers to not prohibit customers or visitors from wearing face coverings in any circumstance.
Employee Vaccination Status Identification
As described above, covered employers would need to determine the vaccination status of covered employees. To do so, covered employers would need to require covered employees to provide proof of vaccination status in one of the following forms:
- 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, or
- in instances where the covered employee is unable to provide the acceptable documentation described above, the covered employee must provide a signed and dated statement by the covered employee including:
- the covered employee’s vaccination status,
- that the covered employee has lost or is otherwise unable to provide the acceptable documentation normally required, and
- a declaration that the statement is true, and the covered employee acknowledges that the covered employee is subject to criminal penalties in the event the covered employee has knowingly provided false information.
If the covered employee does not provide one of the forms of proof of vaccination status described above, the covered employee cannot be considered “fully vaccinated” under the mandate. § 1910(e)(3). Records of employee vaccination status must be maintained, and employee vaccination status must be determined by the covered employer prior to the mandate taking effect. § 1910(e)(4), (5).
At the time of the writing of this article, the mandate is stayed and not being enforced by OSHA. However, that does not mean that private employers should not track its progress and be proficient in its requirements. Critically, all private employers, and not merely covered employers, should monitor the mandate as OSHA has expressly stated that the mandate represents the first step it would take towards requiring all employers, regardless of size, to enforce COVID-19 vaccination or testing policies on their employees. 86 Fed. Reg. 61402, 61403 (Nov. 5, 2021).
If the OSHA Vaccine Mandate goes into effect, as shown above, private employers will have to make significant changes to their operating infrastructure. Prudent private employers may find that getting ahead of the change and preparing their infrastructure for the mandate before it is enforced will ultimately save countless headaches and unforeseeable operating expenses in the long run. To adequately prepare a business for compliance with the mandate, competent legal advisement should be obtained.