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What You Need to Know About Federal OSHA’s Emergency COVID-19 Vaccine Mandate

November 16, 2021

/Coronavirus/Property & Casualty

This blog post can also be found on our Coronavirus Resource Center.

As of November 16, 2021, litigation related to the Federal OSHA vaccine mandate emergency temporary standard (ETS), was moved to the 6th Circuit Court of Appeals via the lottery process. On November 6, 2021, there was a temporary stay issued by the 5th Circuit Court of Appeals in relation to the ETS and then on November 12, 2021 that stay was extended. With the move of litigation from the 5th to the 6th Circuit Court of Appeals, the stay may be left in place or removed during litigation.

If the stay is lifted, OSHA will be able to enforce the due dates within the standard or it may choose to push those dates out. At this time it is prudent for employers to get to know the contents of the ETS so that if the regulation goes forward unchanged, or even if some of the elements of the regulation are changed based on ongoing litigation, they are ready.

COVID-19 Vaccination Card and Mandate

Following is a summary of highlights from the federal vaccine mandate, as issued on November 5, 2021.

COVID-19 “Vaccinate Or Test” Standard: Watch Regulatory Timelines and Actions

As of November 5, 2021, the long-awaited federal OSHA emergency temporary COVID-19 “vaccinate or test” standard (1910.501), was officially published in the federal register. The clock now starts ticking toward compliance deadlines as well as a timeframe intended to result in a permanent standard. What does this really mean? Employers in federal OSHA states will need to make sure they are working toward becoming compliant with the deadline. The deadline for most provisions is 30 days from now (see a deadline table below) and employers in states with state OSHA plans need to carefully watch for their state’s response to this standard. Each state plan has 30 days to develop an equally effective regulation, adjust their already-written regulation to be equally as effective, or simply adopt this one. The state plans do not have to wait 30 days to do this, so keeping an eye on regulatory actions is important.

Employers and industry groups may also wish to ensure they provide comment on and monitor the status of the effort to make this a permanent standard. This is a relatively unusual approach by OSHA and may take some employers and even industry groups by surprise. Some specific areas of comment asked for by OSHA can be reviewed in section 1 B. Request for Comment in the ETS posted on regulations.gov. The comment period ends on December 6th, giving a somewhat short period for employers and other stakeholders to get their input to OSHA. If you wish to comment on the conversion of the temporary standard to a permanent one, go to this section and click on the comment radio button at the top of the page.

Highlights of the OSHA Vaccine Mandate ETS and Resources

A full summary of the 490-page register document is well beyond the scope of this regulatory update; we’ve provided some key highlights below, along with resources for your use in researching its requirements. A review of the documents found on the OSHA ETS page is recommended. OSHA has provided a summary, a fact sheet, an FAQ, a link to the regulation outline and several other useful items on that page. The longer document (linked above) does provide some additional information on detailed items which may be relevant to your specific situation.

  • From a 20,000-foot view this ETS requires employers to either have all employees on site vaccinated or follow testing and masking protocols for those who are not vaccinated. Either way, a written plan is required. Whether secondary to accommodations from Title VII or the ADA or the employer chooses to offer the testing option, if unvaccinated employees are on site the testing and masking protocols must be followed. There is more to this topic and the accommodation process can affect masking and testing as well, so take a look at question set 3 in the FAQ for additional scenarios and details.
  • This ETS will not apply to those employers under some other regulations such as those for federal contractors, federal agencies, or for those employees specifically under the health care ETS. That said, it is possible to have some employees under separate regulations. Questions 2.G – 2.K in the FAQ address some of these in more detail and will help you decide which ETS your employees fall under or if you must comply with multiple ETS provisions for different employees.
  • The ETS was written in a way that extends what might be considered “benefits” to those who are vaccinated. That would include not having to test and not having to wear a mask. This is clearly not allowed by some jurisdictions so the ETS and local regulations may clash on this front. The local, more restrictive regulation prevails here.
  • The 100-employee threshold is defined and outlined in several scenarios, making it clear that the intent is a companywide count of employees at any point in time from November 5th until the ETS is no longer in force. If an employer hits the threshold even once, even for a day, during that time period they must comply with the ETS.
    Employees provided by a temporary company belong to the temporary company and fall under the temporary company’s count only. Multi-employer worksites are not considered all together but rather each employer maintains their own employee count. Part-time employees count toward your number. This is a true headcount, not an full-time employee (FTE) count. The FAQ provided on the OSHA ETS page outlines this in detail in a shorter format than the full document. See questions 2.A.1 – 2.K.
  • If an employer meets the threshold there are still some employees who may not meet the requirements to follow the ETS protections. Some of those requirements include workers who work exclusively outdoors and workers who do not report to the workplace and do not have contact with the general public or customers as part of their work duties (exclusively work-from-home employees should qualify). These categories are defined in the standard and also outlined in the FAQ in question set 2.
  • As you review the FAQ, summary, or other on the OSHA ETS page you will note that employees who do not have to follow the ETS protections still count toward the 100 employee threshold.
  • If you already have a written policy, what should you do? This question is addressed in question 3.C. of the FAQ. You may need to add some things to your policy or you may choose to take advantage of one of the two sample policies on the ETS page under the implementation title. If you hit the threshold, you will need a written policy and as of 11/5/21 you have 30 days to complete it.
  • The ETS requires the development of a roster tracking the vaccination status of all employees in the company whether fully vaccinated, partially vaccinated, or unvaccinated. This roster is a medical record per this standard and must be protected just as other medical records.
    The same is true for testing records. The ETS does provide access to certain records (the employees’ own) to an employee or their representative or an aggregate number for comparison (no names) for the entire number of vaccinated employees vs. total employees on site. See question 4.D Also see questions 11.A and 11.B as they address information timeframe requests, which run from next business day for employees to as little as four hours if records are requested by OSHA.
  • Section 1910.1020 outlines an employment plus 30-year retention for records of this type. The ETS specifically allows for vaccination records and testing records to be disposed of after the ETS is no longer in effect. To find this reference, go to the register document and search the word “retention.”
  • The ETS requires employers to pay up to four hours of time for each initial vaccination dose (does not address boosters). See question set 5 for details around how this can and cannot be done as well as for an explanation of what OSHA considers a reasonable amount of sick leave time (and where that time can come from) for recovery from side effects.
    In general, for side effects an employer can require the employee to use sick time, but if they do not have sick leave available the employer cannot cause them to run into negative sick leave time to recover from side effects. A full review of this section is likely needed to fully understand when employers can require the use of leave time to be used.
  • Testing can be done in a number of ways but one way in which it cannot be done is probably the most important part of this section. “….An over-the-counter (OTC) antigen test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” This requirement takes a self-test and attestation approach out of play. The test type, confirmation and which test is considered the most accurate, as well as other details are outlined in question set 6 in the FAQ.
  • Payment for testing is not defined in the ETS, meaning that employees could be made to arrange and pay for their own tests if there is not a local law stating otherwise. The long document actually states this was done to encourage employees to get vaccinated. Many employers foresee a loss of employees if they utilize this route so have already chosen to provide the testing for employees using third parties or in-house testing options. The ETS leaves this decision in the hands of the employer.
  • Other topics not addressed by the ETS include exclusion pay, barriers, handwashing, and other protective measures currently used by employers and written into some local plans and requirements. As with other regulations, this one does not preclude local regulations which are more stringent than the ETS itself. If you would like more information on these topics, go to question 7.D in the FAQ and in the main document, search the word “ventilation.”
  • As of the morning of 11/5/21, the actual regulation outline was posted on the OSHA website under 1910.501.
  • This standard does have training and information requirements with it. Question set 9 in the FAQ addresses multiple training requirements, including information specific to the employers’ written policy elements, a CDC document on vaccine efficacy, anti-discrimination provisions around reporting from 1904.35 (English and Spanish fact sheets found at link within question 9A), and penalties for providing false information to OSHA from the OSH Act (English and Spanish fact sheets found at link within question 9A).

Effective Date and the Compliance Dates for 1910.501 ETS

The effective date for the ETS is November 5, 2021, which is the date the ETS was published in the Federal Register. Although the ETS becomes effective immediately, employers are not required to comply with the requirements of the ETS until the compliance dates, as follows:

Requirement30 days after publication60 days after publication
Establish policy on vaccination (paragraph (d))X 
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e))X 
Provide support for employee vaccination (paragraph (f))X 
Ensure employees who are not fully vaccinated
are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer)
(paragraph (g))
 X
Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h))X 
Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h))X 
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i))X 
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j))X 
Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k))X 
Make certain records available (paragraph (l))X 

*From United States Dept. of Labor, OSHA, “COVID-19 Vaccination and Testing ETS Frequently Asked Questions,” 12. Paragraph (m) – Dates, as of 11/8/21

Please feel free to reach out directly to your Woodruff Sawyer service team with questions.

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All views expressed in this article are the author’s own and do not necessarily represent the position of Woodruff-Sawyer & Co.

Stephen Glazier

Vice President, Casualty Loss Control Specialist

Stephen has over 16 years of insurance industry experience and 22 years of injury prevention experience. As Casualty Loss Specialist, he provides analysis and strategies to address a wide variety of workers’ compensation and property & casualty issues.

720.593.5409

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Stephen Glazier

Vice President, Casualty Loss Control Specialist

Stephen has over 16 years of insurance industry experience and 22 years of injury prevention experience. As Casualty Loss Specialist, he provides analysis and strategies to address a wide variety of workers’ compensation and property & casualty issues.

720.593.5409

LinkedIn