Update – Jan. 14, 2022: The U.S. Supreme Court made its ruling on Jan. 13. For initial updates and analysis, please read “Supreme Court Rejects One Vax Mandate, But Employers Urged to Stay Tuned” here.
At press time, the country waits for the U.S. Supreme Court to decide the fate of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which would create a COVID-19 vaccine or testing requirement in the workplace for large employers. The court heard oral arguments about the ETS on Friday, Jan. 7, and CNN reports that the conservative majority of justices seemed reluctant to adapt OSHA’s rules, while the liberal minority expressed support for them.
To help employers understand how the federal mandate could impact them, Eric J. Conn and Lindsay A. DiSalvo, partners from Conn Maciel Cariel LLP, spoke during a recent webinar entitled “OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule.” Held on Thursday, Jan. 6, the online event was hosted by BLR publications Facilities Management Advisor, EHS Daily Advisor, and HR Daily Advisor. It was sponsored by Avetta, AxiomMedical, OraSure Technologies, Intelex, and UKG.
“I’m a little sad here that we are in 2022 still talking about COVID-19 at all and, in particular, OSHA’s Emergency Temporary Standard, which has taken quite a roller-coaster ride to get to this point,” Conn said. “As a career-long OSHA specialist attorney, the word ‘OSHA’ is not uttered at the Supreme Court very often, so this is a big deal and really interesting and really exciting for folks in our space.”
As for OSHA’s ETS, “what’s interesting about this rule is all the ways different regulatory agencies can use regulations as levers to influence behavior. It’s really multiple forms of incentives and disincentives creating with the various tools regulatory agencies have,” Conn said.
“The whole purpose of this rule is it fits under President Biden’s COVID-19 action plan. The first prong is to vaccinate the unvaccinated; to get the nation’s vaccination rate higher,” Conn said.
According to slides from Conn and DiSalvo’s presentation, the rule would apply to employers with 100 employees or more companywide, as of Nov. 5, 2021, but does not include temporary workers from a staffing agency or independent contractors.
“Independently owned and operated franchises are separate entities such that franchisees count only employees of their individual franchise,” a slide stated, adding that “two or more related corporate entities may be a single employer for ETS purposes if they handle safety matters as one company.” Those excluded would be those who work from home or primarily work outside, the slide noted.
Conn and DiSalco explained the OSHA standard has eight core requirements:
1. Provide up to four hours of paid time off (PTO)
The rule would create up to four hours of PTO, during working hours, for employees to get vaccinated per dose for primary vaccinations, according to a slide from their presentation. Conn explained that this would only be for the Johnson and Johnson 1-dose or one of two mRNA two-dose vaccines, Pfizer and Moderna, administered beginning Jan. 10.
Nothing prohibits employers from allowing employees to get vaccinated outside working hours, he explained, and the Centers for Disease Control and Prevention (CDC) encourages workplaces to host on-site vaccination clinics. This rule could be amended in the future to include booster shots, he said. Additionally, employers can choose to offer PTO for booster shots.
“The concept is that OSHA believes that there are a lot of individuals out there that if they only had the time and didn’t have to worry about not getting paid for time, to go get vaccinated, they would surely have done it by now,” Conn said, explaining that employees can ask their employer to get vaccinated during their shift.
This creates a new bucket of PTO, according to Conn, unless an employer already has set up a bucket specifically for vaccinations. “You can’t require an employee to use sick leave, vacation time, generic flex leave” to get vaccinated, he said.
2. Provide PTO to recover from the vaccine
“It’s a requirement to provide reasonable time off and paid sick leave for all employees to recover from the ill effects of the vaccine,” Conn said, adding that “they don’t set an actual cap for the sick leave recovery.” Conn said that OSHA believes two days would be a reasonable amount of time.
While this might require employees to use paid sick time or general leave, they would not have to use vacation or non-sick leave, Conn said, adding they would not have to borrow against future sick leave. They would need to be given additional paid time off if they already exhausted their annual leave time. This would be effective for vaccines, starting Jan. 10, and would not apply to booster shots.
3. Implement a soft-vaccine mandate
“This would cause you to exclude from the workplace employees who are not either fully vaccinated or can’t demonstrate a recent negative test to come into the workplace,” Conn said, explaining that workplaces can decide that in lieu of requiring employees to be vaccinated, they can require them, instead, to provide weekly negative COVID test results, from a EUA- or FDA-cleared test, at the employees’ expense.
“We think more than half the states have laws that would require employers to assume the cost of a medical test or medical examination or medical activity. We think COVID testing would be covered by that as a condition of work,” he said.
Conn said that self-administered, self-read tests are not acceptable unless they are observed by a health proctor or employer, which could be done virtually.
He said that unvaccinated employees do not have to show a negative test for 90 days after they return to work from infection. “The reason there is at least if you’re using a PCR test, you’re going to continue testing positive for quite a long period after you are no longer infectious,” Conn said.
OSHA favors workplaces that have a hard-vaccine mandate, Conn explained. However, he said, “I think if OSHA believed they had the lawful authority to do that, they would have done that. But they, I think, probably, rightfully determined that that would make the rule more vulnerable to legal challenges than it’s already going to be if they did a hard mandate.”
4. Require unvaccinated employees to wear a face covering
In addition to providing weekly negative COVID tests, unvaccinated employees would be required to wear a face covering at work at all times, Conn said. He explained that this rule does not prevent workplaces from requiring all employees to wear face coverings, especially during times of high community transmission as defined by the CDC. Employers would not have to pay for masks for unvaccinated employees.
“They are trying to create a little bit of pain for employees who choose to not get vaccinated. If you make that choice, then you’ve got to pay this weekly cost to get tested, if the employer puts the cost on you, and you’ve got to supply your own face coverings,” Conn said.
5. Require employees to provide prompt notice of a COVID-positive case and immediately remove them from the workplace
Conn said that those testing positive for COVID would not be able to return until receiving a negative PCR test after a positive antigen test, meeting CDC’s return-to-work isolation criteria of 10 days, or receiving a return-to-work letter from a healthcare provider.
“You have to medically remove employees from work if they test positive, and they have to stay out of work until return-to-work criteria are met—you are not required to provide paid time for that,” he said. Conn clarified that updated CDC guidance for those returning to work after exposure is five days. OSHA does not automatically change its rules to match this updated guidance, but Conn believes it will be changed in the future.
6. Prepare a written vaccination, testing, and face covering policy
DiSalvo explained the last three parts of the ETS. She said that employers would have to create their own written policies on vaccination, testing, face coverings, and how paid time off would be factored in for vaccinations and illness related to the vaccination.
She said that the law firm recommends that the policy specifies “the process for a potential accommodation related to a disability or a medical reason or for a religious reason.” DiSalvo said that employees should be aware of the process to request that accommodation. She said that employers should provide a written policy of how testing will be done for those who choose not to get vaccinated. DiSalvo said that the policy should include language regarding return-to-work criteria for those infected.
7. Provide information to employees about the ETS
DiSalvo said that employers need to inform employees of their policies when it comes to the above requirements, not necessarily in a training session, but possibly via fact sheets, bulletin boards, e-mails, or online. Other information includes information about COVID-19 from the CDC website, penalties for providing false information, and anti-retaliation policies.
8. Enhanced reporting requirements for work-related COVID-19 cases
DiSalvo said that this would mean all work-related COVID-19 fatalities should be reported within 8 hours of discovery, not just deaths that occur within 30 days of exposure. She said this would also require the reporting of all work-related COVID-19 in-patient hospitalizations versus just hospital admissions that occur within 24 hours of exposure.
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