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OSHA ETS COVID-19 Mandate for Employers with 100 or More Employees Released

The Biden Administration has released the OSHA ETS. While North Carolina and South Carolina both have state-level OSHA programs and must either accept the ETS as is or propose their own program at or above the level of the federal OSHA requirements, employers need to have a thorough understanding of this newly released guidance.

APPLICABLITY

Which employers are covered by the ETS?
Any employers that are at (or reach) the 100-employee mark at any time during the ETS’s effective period are covered. Once the 100-employee mark is reached, the employer must continue to comply until the end of the ETS, even if their staff levels fluctuate to below 100 employees.

Which employers are NOT covered even if they have 100+ employees?

    • Workplaces covered by the Safer Federal Workforce Task Force Guidance (Federal Contractors and Subcontractors) are NOT covered by this ETS.
    • Federal Agencies are not covered due to other compliance requirements. (The USPS is covered.) Important: In alignment with this ETS, be aware that the date for compliance with the Federal Contractor and Subcontractor vaccine requirements has been pushed back to Jan. 4, 2022.
    • Partial: State and local government employers in states without state plans are not covered, but states with state plans (NC, SC) will be covered.
    • Partial: Employers covered under the OSHA ETS for healthcare workers must comply for portions employees/sites that are not covered by the Healthcare ETS.

What about associated businesses? How do they count employee number?

    • A standard Franchisee/Franchisor operation are counted separately from one another.
      • Otherwise, two or more related entities may be regarded as a single employer for this purpose if they handle safety matters as one company.
    • Staffing services count all employees, whether jointly employed by organizations covered by the ETS or not. This means that in some cases, agency temps may not fall under ETS requirements even though on a worksite they would (or the opposite.)

Which employees are counted in the total 100+ employee number?

    • This 100-employee rule applies to companies, not worksites. (Worksites that are under 100 will be covered by the ETS if they are a part of a larger company.) 
    • All vaccinated and unvaccinated employees, no matter where they work, are counted. Part-time, Seasonal and temporary (non-agency) workers are counted if they work at anytime during the ETS period. Minors are not excluded from the count or safety requirements.
    • Outdoor workers and remote workers are not required to comply with all the safety requirements in certain circumstances but must be counted in the overall employee count.
    • Independent contractors do not count.
    • Temporary agency supplied staff do not count (for the client employer.)

Which employees are covered by the safety provisions of this ETS?
All employees in a covered business with the exception of:

  • Employees who work exclusively outdoors. This does not include working in a partially constructed building with walls blocking air flow or those who routinely drive with others in a vehicle as a part of work duties. (For example, driving to a job site.) Brief time spent indoors, like use of restroom at a worksite, is acceptable.
  • Employees who do not report to a workplace where other individuals are present or who work from home.
  • Employees covered by the previous Healthcare ETS (unless it expires.)

Are employees who had COVID-19 previously or who have antibodies exempted?
No. OSHA has determined that based on current research, the level of immunity for those who have had an infection varies a great deal and is often not sufficient to offer protection. (Vaccination offers between 2.5 to 10.5 greater levels of protection, depending on the severity of the previous case and some individuals do not develop any immune response post-infection, particularly older, asymptomatic and medically at-risk individuals.)

What about state laws prohibiting mandatory vaccination, face coverings or testing?
This ETS specifically states that it preempts all State and local workplace, except pursuant to a State OSHA Plan (however, those will need to be equally or more protective.)

PROVISIONS AND EFFECTIVE PERIOD

The ETS is expected to last 6 months. It takes effect immediately upon publication in the Federal Register. The following timeframes apply:

    • State OSHA Plans have 15 days to announce their decision to implement a plan at least as effective as, or identical to the OSHA ETS. They must complete the plan within 30 days. (NC and SC both have state plans.)
    • 30 days after publication most safety requirements go into effect, including:
      • COVID-19 Vaccination Policy must be in place unless a testing and face covering policy is adopted as an alternative. A mandatory vaccination policy must include vaccination of all employees and new employees other than those for whom it is medically contraindicated, those where a medical necessity requires a delay in vaccination or those who are entitled to reasonable accommodation (ADA/religious.)
      • Maintain records of each employee’s status (and retain proof of status.)
      • Time off (paid) for vaccination and recovery: Provide reasonable time off (up to 4 hours of paid time for each dose) to receive the vaccine, and reasonable time and paid sick leave to recover from any side effects.
      • Face coverings required for all not-fully vaccinated when they are indoors or in a shared vehicle (some exceptions such as alone in a room with closed doors and floor to ceiling walls, and when eating/drinking or when it presents a hazard.) Employers should not prevent anyone from wearing a mask and should refer to state and local laws which may require additional precautions.
      • Supply information to staff in an understandable manner: 1) General information about the ETS and associated policies. 2) The CDC document Key Things to Know About COVID-19 Vaccines. 3) Information about retaliation and discrimination protections. 4) Information about criminal penalties for supplying false statements or documents.
      • Report work-related COVID-19 fatalities and hospitalizations to OSHA within 8 hours (death) and 24 hours (hospitalization.)
      • Make records available for examination to employees and anyone having written consent by the end of the following business day. Also, make available to employees or employee representatives the aggregate number of fully vaccinated employees and the total employees at the workplace.
      • The Assistant Secretary may request records. In most cases, records should be provided within four business hours. The vaccination policy and aggregate numbers (as above) should be provided by the end of the following business day.
    • 60 days after publication, testing provisions apply:
      • Weekly testing for all employees who are unvaccinated or partially vaccinated includes those who are not two weeks past their final dose, with an appropriate period between doses (full vaccination does not include boosters) IF such employees are in the workplace at least once a week.
      • For employees not in the workplace once a week, testing within seven days before returning to work if they have been out of the workplace for seven days or longer.

VACCINATIONS

Does the employer have to pay for vaccination?
The ETS assumes no costs are associated with the vaccine itself, but requires employers to provide:

    • Reasonable paid time off (up to four hours of paid time for each dose) for vaccination to travel to and from a site as well as to wait for and receive the vaccine. This time may not be supplied from existing sick/PTO banks and should be logged as work hours. If the employee chooses to be vaccinated outside of work hours, the ETS does not require paid time off to be provided (unless another law, such as a reasonable accommodation scenario might apply.) Employers should adjust schedules, if necessary, to avoid overtime during work hours. Employers are not obligated to reimburse employees for transportation costs.
    • Reasonable time and paid sick leave to recover from any side effects. (This time off may be used out of paid sick leave benefits otherwise provided by the employer to offset the costs if it is available. Employers may not “advance” sick pay to cover or use vacation time. However, employers may cap this time if they choose to no less than two days.) We do not recommend requiring any proof of side effects, although the ETS does not address this.
    • FLSA and other state laws may need to be reviewed, so contact your attorney or Catapult to discuss your situation.

What kind of side effects would trigger leave?
Pain, redness or swelling at the site of injection, systemic effects like tiredness, headache, muscle pain, chills, fever and nausea.

How can I arrange for vaccinations?
The ETS states that employers may choose to have employees travel to a vaccination site or may have an on-site health clinic or alternatively may have a third-party administrator come to the worksite. Catapult’s recent Answers at 8 Session on testing and vaccinations offered a list of local providers, as well as links to organizations that can manage tracking.

What is proof of vaccination status, and do we have to keep the proof?
Yes. You must keep a record of each employee’s vaccination status and preserve the proof provided. All such proof should be kept in a confidential medical file.

Acceptable proof of vaccination status is: (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 (iv) a copy of any other official documentation that contains the necessary information. Any of these documents should include the employee’s name, 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 if my employee has no proof?
A signed and dated employee attestation of vaccination status is acceptable in instances when an employee is unable to produce proof of vaccination. This must include an attestation that the employee is unable to produce or has lost any other type of proof of vaccination and include the following language: “I declare 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.”

Employees should include in their statement, to the best of their recollection, the type of vaccine, dates and HCP or site where it was administered.

What vaccinations are acceptable?
Any that are FDA approved or emergency authorized by the FDA or WHO (Word Health Organization.) Some US clinical trial vaccines with independently confirmed efficacy will also apply. WHO approved alternate doses of different vaccines may also be acceptable in some case. It is important to review WHO or FDA information if you are unsure.

TESTING

How will I need to manage testing?
Catapult’s recent Answers at 8 Session on testing and vaccinations offered a list of local providers, as well as links to organizations that can manage tracking. The ETS also states that pooled testing (where samples are combined and individually retested if there is a positive) is permitted.

Testing results must be maintained as medical records; however, these are not required to be preserved beyond the time period of the ETS.

Can I test the employees (or have them test themselves) with an OTC kit?
Antigen tests are the only diagnostic test that can be self-administered. The ETS guidance says that employers should observe the employee as they administer the test and read the test results.

Do testing result delays cause concern for OSHA?
Allowing an employee to continue working with no reasonable explanation of a delay in their returning results to the employer may be cause for a concern if it appears the employer is choosing to allow them to work unsafely.

Do I need a CLIA certificate of waiver to perform the testing?
Yes, unless the test is an Antigen test that is self-administered and self-read by the employee (observed by the employer or an authorized telehealth proctor) in accordance with authorized instructions.

Antigen tests are the only diagnostic test that can be self-administered. If testing at the site, the employer should observe the employee as they test and read the results.

If I have a mandatory vaccination program, do those who have religious, or ADA exemptions have to be tested weekly?
Yes, barring separate objection to the test itself, in which case other accommodations can be reviewed. While the ETS does not mention ADA accommodations, those would need to be considered as well.

Does the employer have to pay for testing or time to take the test?
The ETS states the employer is not required to pay for any costs associated with testing unless other laws, regulations or collective bargaining agreements apply. However, OSHA has confirmed that under the FLSA employers may need to pay for the time it takes for an employee to get tested, and there may be other state laws to consider. Consult with your attorney or Catapult to determine the appropriate course.

Does the employer have to pay for face coverings?
Not unless another State or local regulation requires it.

What if the employee tests positive?
Employers must:

    1. Require employees provide prompt notice of positive test or diagnosis by an HCP.
    2. Immediately remove such employees from the workplace (regardless of vaccination status.)
    3. Keep them out until they meet return criteria (the ETS offers several return criteria, both the standard 10 day, or a negative result on a NAAT test following a positive antigen test if the employee chooses to seek confirmatory testing or based on recommendation by an HCP.
    4. Refrain from testing for 90 days following the date of their positive test or diagnosis but require a face covering in the meantime.

Does the employer have to pay for quarantine or isolation time?
No, barring state or local laws, the employer should use their standard leave practices.

Additional Tools for Supporting Compliance:

This Alert is for informational purposes only. Catapult is not a law firm, does not provide legal advice, and is not a substitute for an attorney. If legal advice is required, please contact Catapult’s Pre-Paid Legal Services Plan or the employment law attorney of your choice.

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