OSHA COVID-19 Vaccine Mandate Stay Lifted: What Private Employers Need to Do to Comply
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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 mandate employees either get vaccinated or undergo periodic testing for COVID-19 (“mandate”). At first, the mandate triggered numerous lawsuits filed by states pushing OSHA to ultimately announce that it was suspending any enforcement of the mandate until the court cases are resolved. During that time, we published our previous article on this topic which gave an overview of the mandate and described what employers covered by the mandate could do to proactively prepare for complying with the mandate in the event that the stay was lifted and the mandate, in turn, became enforceable by OSHA.
On December 17, 2021, the stay was lifted, and those proactive considerations previously described became seemingly necessary. The stay on the mandate was lifted by the Sixth Circuit Court of Appeals and OSHA has announced that it will begin to enforce the mandate. It is possible that further unexpected legal gymnastics could delay or otherwise continue to attack the mandate. But as it stands now OSHA will seek to enforce the mandate along similar timelines as originally proposed. Critically, as explained below, the timelines OSHA recently unveiled create uncertainty regarding what portions of the mandate will be enforced by what date. This article explains the deadlines to comply with the mandate and then describes what a covered employer must do to comply with each deadline.
Who is Required to Comply with the Vaccine Mandate?
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 currently “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).
When Must a Covered Employer Comply with the Mandate?
OSHA announced that it will begin enforcing the mandate, but not all requirements of the mandate at the same time. Specifically, as of the date of this article, OSHA’s statement is:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
That statement could be interpreted many ways. However, the statement makes a distinction between 2 types of mandate infractions and when compliance will be enforced for each: (1) all general requirements and (2) the testing requirements.
Because of this distinction, it appears that covered private employers must comply with the entire mandate by January 10, except testing-related requirements which must be complied with by February 9. Also, it appears OSHA will only give a covered employer until February 9 to comply with the testing requirements if the covered employer is making other good faith efforts to comply with the mandate. The takeaway: until further notice, it is time for covered employers to buckle down and kick into gear their mandate compliance.
What Must a Covered Employer Do to Comply with the Mandate?
How to Comply with the January 10, 2022, Deadline
By January 10, 2022, covered employers must implement the following measures:
- Establish a Vaccination Policy: 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).
- Distribute Vaccine Information: 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 Vaccine Status: determine the vaccination status of each employee and require employees to provide acceptable proof of vaccination status (described in more detail below).
- PTO: give employees paid time off to get vaccinated and paid time off to recover from the side effects of vaccination.
- Notification Requirement: require employees to notify the employer upon receipt of a positive test result or diagnosis of COVID-19.
- Removal: immediately remove employees who receive a positive test result or diagnosis of COVID-19.
- OSHA Data Reporting: report to OSHA any work-related COVID-19 fatality or hospitalization.
- Record-Keeping: maintain records of employee vaccination status and COVID-19 test results.
- Face Cover Monitoring: require unvaccinated employees to wear a face-covering that fully covers the employee’s nose and mouth and is replaced when “wet, soiled, or damaged.”
- Face Cover Requirement: require unvaccinated employees 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.
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
How to Comply with the February 9, 2022, Deadline
As explained above, OSHA has given until February 9, 2022, to comply with the “testing requirements” if the covered employer has been making good faith efforts to otherwise comply with the mandate. To be sure, “testing requirements” only come into play if an employer’s written vaccination policy does not mandate vaccination but instead allows for the alternative periodic testing, and a covered employee participates in periodic testing rather than receiving the vaccination. In those cases, although it is unclear exactly which mandate requirements are “testing requirements,” the “testing requirements” which can be complied with by February 9, 2022, instead of January 10, 2022, are likely to include the following:
- Periodic Testing: 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)).
- Removal: 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.
- Test Result Record-Keeping: maintain medical records in accordance with § 1910.1020 regarding all test results.
Determining an Employee’s Vaccination Status
Covered employers will need to determine the vaccination status of covered employees. To do so, covered employers 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 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).
Complying with the Mandate’s Face Covering Requirement
Covered employers will 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.
How Does a Covered Employer Implement the Mandate Requirements in its Workplace?
It is understandable if reading the above requirements does not provide clear guidance on exactly how to move forward. For instance, what does it mean to “remove” employees? Is noncompliance with the mandate a terminable offense? What does a vaccine policy have to say? What information is a covered employer required to disseminate and where can it be found? What does an employee statement regarding unavailable testing documentation have to say? What is the procedure that an unvaccinated employee needs to follow to properly test for COVID-19 under the mandate? Can a covered employer choose to not comply with the mandate?
These questions are just the tip of the iceberg, and many other questions could come to mind when trying to determine how the mandate translates into practical day-to-day operational changes. OSHA has published voluminous materials in association with the mandate that may provide more guidance. Besides that, employers are required to make these legal judgments and, in good faith, strive towards satisfying compliance with the mandate. Retention of legal counsel that is clued into these issues and prepared to quickly deliver quality work product establishing compliance is likely a way to demonstrate that “good faith effort” to comply with the mandate.
Suddenly, the mandate stay is lifted and covered employers are required to drop everything and establish compliance with the mandate as soon as possible. Though it is unclear exactly what requirements must be complied with by which deadline, covered employers should strive for complete compliance with the entire mandate by January 10, 2022.
As mentioned in our previous article, establishing compliance will require significant overhauling of employment policies and company operations. Getting started as soon as possible is the best antidote for that type of massive change. Bringing in legal counsel with the same “drop everything and change” mentality can aid private employers in ensuring that new systems and policies comply with the mandate.