COVID-19 Update: OSHA Releases Proposed Vaccine Mandate

COVID-19 Update

OSHA Releases Proposed Vaccine Mandate

As directed by President Biden, on November 4, 2021, the Occupational Safety and Health Administration (OSHA) filed a proposed rule covering employers of 100 or more. The 490-page (!) rule and preamble contain a new Emergency Temporary Standard (ETS) with regulations for face coverings, testing, vaccine mandates, and more. These regulations are summarized for easier reading here.

California employers should note that our state-approved plan (Cal/OSHA) may adopt the federal standard or implement its own regulations that go beyond federal requirements. The state has 30 days to respond, so we will be watching carefully for any new information. In the meantime, employers should understand OSHA’s proposal, and Sierra HR Partners has the highlights:

Covered Employees

While all organizations with 100 or more employees are covered (except federal contractors and healthcare providers already covered by separate regulations), individual employees are not subject to these rules if they:

• Do not report to a workplace where other individuals are present.

• Work from home.

• Work exclusively outdoors.

Vaccination Mandates, Verification, and Paid Time Off

Employers must verify the vaccination status of each of their employees. This won’t be new for California employers, who have been required to verify vaccination status under the revised Cal/OSHA ETS we received in June 2021. Under this federal ETS, though, covered employers cannot simply accept the employee’s attestation – we must request official documentation such as the vaccine card or a copy of medical records, and retain the information in employees’ medical files.

The ETS does allow employees to attest to their vaccination status in a statement only if they are “unable to produce acceptable proof.” That said, all vaccinations in California are recorded by the state and available within minutes at https://myvaccinerecord.cdph.ca.gov/, so it’s unlikely that any California employee will be without the kind of record required.

OSHA requires that employers provide paid time off (up to 4 hours) for employees to receive each vaccination dose and “reasonable” paid sick leave to recover from the side effects of being vaccinated. This paid benefit is in addition to existing company-provided sick leave, and is not tax-deductible.

Mandate Exceptions and Testing

Like other mandates we’ve seen, OSHA allows exceptions for medical conditions and religious objections. Those who are not fully vaccinated must test weekly. Any FDA-approved test may be used, including over-the-counter (OTC) tests, but regulations state that these tests cannot be “both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” To the degree that employees utilize OTC tests, they’ll need assistance from a third-party for the tests to be legitimate.

Other Safety Measures

Additional measures included in the ETS will be familiar to California employers. Employees who are not fully vaccinated must wear face coverings when indoors or when riding in vehicles with others. Employees may remove masks only when alone in a room, when eating or drinking, or when wearing a face covering creates a safety hazard.

Employers must also provide specific information to employees. This includes:

1. Policies and procedures that comply with the ETS.

2. Information published by the CDC about vaccine safety and efficacy

3. Information about retaliation and discrimination protections.

4. Information about criminal penalties associated with knowingly supplying false statements or documentation (such as a fake vaccine card).

As stated above, we’ll be watching for Cal/OSHA’s response to the federal ETS, as well as any legal challenges that may be brought against either regulation. While we wait for final requirements, it is important for employers to determine employees’ vaccine status if you have not already done so. Stay tuned for more information, and contact one of our Consultants with any questions you have.