The 490-page Federal Occupational Safety and Health Administration’s (Fed/OSHA) Vaccination and Testing Emergency Temporary Standard (VAX ETS) was published on November 5, 2021 and while it was effective immediately giving covered employers until December 5, 2021 to comply with the VAX ETS requirements and until January 5, 2022 to begin required testing for not fully vaccinated employees, on Saturday, November 6, 2021, after a joint petition from the States of Louisiana, Mississippi, South Carolina, Texas and Utah and numerous other persons, the United States Fifth Circuit Court of Appeals issued a temporary stay over the VAX ETS and ordered the United States to respond to the request for a permanent injunction by 5:00 p.m. on Monday, November 8.  At this time, it is not known when or if the VAX ETS will be effective.

In addition, because California has its own State-Plan approved occupational safety and health program (Cal/OSHA), covered California employers may enjoy a longer pause before becoming subject to the VAX ETS.  While previous Cal/OSHA’s COVID-related regulations have caused California employers to struggle to keep up with changing requirements, such struggles have, no doubt, prepared California employers for many of the VAX ETS’ requirements.  However, because Cal/OSHA is an approved state program, Cal/OSHA has up to 30 days to either adopt any VAX ETS or amend its own rules (i.e., the Cal/OSHA ETS) to be “at least as effective as” the Federal version.  Cal/OSHA only has 15 days to declare what action it will take, so while it is not clear when Cal/OSHA will need to make its decision or what deadlines will ultimately apply to California employers, we should find out shortly after the stay on the VAX ETS is lifted.  Employers with employees in California (and other states with approved State-Plans) with 100 more employees should immediately consult with counsel about developing a policy or policies to best ensure compliance with all local, state and federal regulations.

Assuming that the VAX ETS will go into effect, as written, employers should understand the following:

WHO IS COVERED:

All employers under Fed/OSHA’s jurisdiction with 100 or more employees in the United States on or after the effective date are covered.  Part-time employees must be included in the count, but not independent contractors.  If a business utilizes a staffing agency for its workforce needs, the staffing agency’s employees will not count toward the business’ 100 employee threshold.  However, if that staffing agency employs 100 or more employees, the staffing agency is responsible for VAX ETS compliance as to the staffing agency’s employees.  

The VAX ETS does not apply to Federal contractors or subcontractors or healthcare workers who are covered under separate regulations, including the Healthcare ETS published June 21, 2021.  

And, while an employer may be covered, the VAX ETS does not apply to employees who work outdoors or those who work from home and do not report to a workplace where co-workers or customers are present.  

WHAT IS REQUIRED:

Paperwork/Recordkeeping:  

Employers must develop and implement a mandatory COVID-19 vaccination policy.  Employers are required to seek out the vaccination status of each employee, obtain proof of vaccination, maintain records of employees’ vaccination status, and a roster of each employees’ vaccination status.  Such records are considered confidential medical records. 

Employers must provide employees with information about the VAX ETS and the new policies in a language and at a literacy level that the employees will understand which must include information about protection from retaliation and discrimination, laws related to criminal penalties for supplying false statements, a copy of the CDC’s “Key Things to Know About COVID-19 Vaccines” and that employees are protected against discharge or retaliation for employees’ compliance.

The VAX ETS permits several means for employees to confirm their vaccination status, including an attestation that the statement is truthful and false information may subject the employee to criminal penalties.  Any employees who do not provide proof of vaccination must be treated as not fully vaccinated.

For employees subject to a testing regimen, the employee must provide, and the employer must maintain, records of the weekly testing, which are confidential medical records.

Vaccination/Accommodation:

Covered employers must mandate vaccination for all employees, except for those who need an accommodation or other medical necessity.  While the VAX ETS requires a vaccination mandate it does not impose or direct employers as to how to sanction employees who will not comply, other than to require testing and face coverings.

Paid Time Off:

Employers are to provide employees with up to four hours of paid time at the regular rate of pay to receive each dose of the vaccine, and time and paid sick leave to recover from any side effects. 

Testing and Face Coverings – The Alternative to Vaccination:

Each unvaccinated or not fully vaccinated employee must be tested weekly, but the VAX ETS does not require employers to pay for testing.  (All employers should consult with counsel as to whether they may be required to pay for testing under a mandatory vaccination program in states like California, local regulations or ordinances, or collective bargaining agreements.)  Not fully vaccinated employees who test COVID+ become exempt from weekly testing requirements for 90-days.

Not fully vaccinated employees that work remotely, must be tested within seven days before coming into the workplace and provide proof of a negative test.  This seems to indicate that a not fully vaccinated employee that is scheduled for a weekly return to the worksite will need weekly testing.  However, a similar employee scheduled for monthly visits will need testing in the seven days prior to the monthly site visit.

In addition, not fully vaccinated employees must wear a face covering when working indoors or occupying a vehicle with another person during work, except in an enclosed office-type space, for the time limited to eating or drinking, for security compliance, or where a face covering is infeasible or creates a greater hazard.

And, employers may not prevent vaccinated employees from wearing a face covering unless doing so creates a serious workplace hazard.

Notice/Quarantine/Reporting/And More:  

An employer’s VAX ETS policy must require employees to give notice upon learning that the employee tested COVID+ or was diagnosed with COVID, regardless of vaccination status.  The VAX ETS policy should identify the notice procedure for employees to follow.  Once the employee gives notice, an employer must remove that employee from the workplace until the employee meets the return to work criteria.  A return to work is permitted following specific negative confirmation testing, a return to work from a licensed healthcare provider or under the CDC’s return to work criteria.  While the VAX ETS does not require an employer to provide paid time off, employers should consult with counsel about state, local and collective bargaining requirements for paid time off.

Further, employers must report each work related COVID-19 fatality within 8 hours of the employer learning of the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the hospitalization.

And, the VAX ETS allows an employee or his or her representative, to receive a copy of the employee’s vaccine and testing records that are maintained by the employer and to provide the total number of employees and the aggregate number of fully vaccinated employees in a given workplace in one business day after making such a request.  Further, upon request from Fed/OSHA an employer must provide a copy of its policy in four hours and all other records required by the VAX ETS by the next business day.

CONCLUSION

While the Courts have stayed the VAX ETS, for now, given the various new potential requirements regarding mandatory vaccination and testing that are not included in Cal/OSHA’s ETS, we anticipate that Cal/OSHA will adopt the majority of the new Federal ETS requirements.  Indeed, even with a stay of the Federal VAX ETS, Cal/OSHA might roll out new similar requirements for California employers.  Ultimately, as Cal/OSHA must have a rule “at least as effective” as the VAX ETS, we predict additional requirements for covered California employers.  Thus, the Cal/OSHA requirements will likely: cover more employers, mandate employer paid testing for not fully vaccinated employees and may add additional notice and reporting obligations.