The latest on OSHA's COVID-19 vaccination mandate - Worksite Medical
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UPDATE Monday, Nov. 8, 2021

On Nov. 5, the Occupational Safety and Health Administration officially published its much-anticipated emergency temporary standard on COVID-19 vaccination and testing

Employers with 100 employees or more have until Dec. 5 to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or develop a policy that gives employees the choice to undergo weekly COVID-19 testing instead. 

OSHA estimates that the ETS will cover around two-thirds of private-sector workers, around 84 million people. It does not apply to employees who work solely from home, exclusively outdoors, or don’t report to a workplace “where other individuals are present.” This ETS overrules any state plans unless they are “at least as effective” as federal OSHA’s. 

Employees who are covered under the standard have until Jan.4 to be fully vaccinated or get weekly COVID-19 tests. Employees who choose to go the route of weekly testing will still be required to wear a face-covering while indoors or in a vehicle with another person for work purposes.

 

What to expect between now and Jan. 4 

 

This deadline gives employers time to determine the vaccination status of employers and get their documentation in order.

It also allows time for employees to get their required vaccine dosage — whether it’s only one dose or the first two. Employers are required to provide paid time off for workers to get their vaccine, up to four hours for each dose, as well as paid leave to recover from any side effects. 

OSHA Deputy Assistant Secretary Jim Frederick said that many employers are already complying with the standard. The 100-employee threshold, he noted, was chosen as employers with that many workers will most likely have the administrative capacity to promptly implement the requirements of the ETS. 

There is a 30-day comment period on the standard. OSHA is specifically seeking to learn more about the availability of employers under the 100 employee threshold to implement vaccination and/or testing; The employee threshold could be adjusted in the future. 

 

Employer & Labor Practice Group Alert

 
 
Our friends at Leech Tishman, who’ve been covering the new standard from a legal standpoint, released this statement:
 
“As we have previously reported, 26 states (and numerous individuals, business and trade groups) have filed four separate petitions challenging the OSHA COVID-19 Emergency Temporary Standard. Five states, led by Texas, filed in the 5th Circuit, which issued the stay order yesterday in New Orleans. 11 states, led by Missouri, have filed in the 8th Circuit. As of Sunday morning (November 7, 2021), no action has been taken on that petition. Three states, lead by Florida, filed Friday in the 11th Circuit, and seven states, led by Kentucky, have filed in the 6th Circuit. As of Sunday morning, no action has been announced in either of those cases. Each of the petitions have both similarities and differences describing “how” the ETS is defective and should not be enforced.
 
“Under rules adopted in 1988, petitions against a federal agency filed in different circuit Courts of Appeals are managed by the Judicial Panel on Multidistrict Litigation. The petitions will be consolidated and heard by one circuit which is chosen by lottery. The 5th Circuit’s action to stay taken yesterday, if the case is transferred to another circuit, can be reviewed after transfer. Any stay can be extended or vacated. If the 5th Circuit is chosen by lottery, whatever further decision it reaches on the issue of the stay (probably by Wednesday or Thursday) will remain in effect pending final review and disposition of the case.
 
“There is no word on when the Judicial Panel will conduct the lottery. We will update these alerts as new developments occur.
 
“Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.
 
“Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.

To learn more about the ETS, check out the fact sheet, ETS summary, a set of frequently asked questions and answers, and sample policies for employers.

***

UPDATE Monday, Oct. 18, 2021

OSHA is working quickly on an emergency temporary standard (ETS) on COVID-19 vaccination and testing in the workplace, according to acting agency administrator Jim Frederick. 

Frederick provided several updates on OSHA efforts during an Oct. 7 webinar hosted by the National Safety Council. He did not provide a timeframe for when the ETS would be issued but said that it is being worked on “expeditiously.” 

“We’re considering the scope and the terms of the potential ETS,” Frederick said. “We know that the pandemic will continue to evolve, and we’ll continue to monitor vaccination trend data, variants of the virus, and other factors that will guide our continued efforts to ensure workers are protected from the virus while they’re on the job.”

This update follows an announcement (shown below) from President Biden where he said that OSHA is working on an ETS that will require workplaces with at least 100 workers to be fully vaccinated or show proof of a negative test at least once a week. 

“The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers,” Biden said. “We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

Due to the timeframe of the ETS, there will not be public comment before it is published. Instead, it will act as a proposed rule, meaning there will be an opportunity for comments that could guide a permanent standard if OSHA chooses to enact one. 

 

How to prepare for the ETS as an employer

 

  1. Take a formal headcount of employees – All private employers with 100 or more employees will be subject to the ETS. This number will be based on a company-wide headcount and will include all employees whether they are full-time, part-time, or on a temporary basis. 
  2. Survey on vaccination status – By knowing how many employees are vaccinated, employers can better gauge whether weekly testing is a viable alternative to a blanket vaccination mandate. Also, by surveying employee sentiment on vaccinations, employers can determine the best way to communicate standards. 
  3. Research testing – If employers want to opt for the weekly testing option, it’s a good idea to first understand the logistics of the available testing options such as rapid tests, PCR tests, and home testing kits. 
  4. Create a written policy – A well-written policy should detail the requirements the employer has decided on for employees, as well as the consequences for non-compliance. 
  5. Develop employee communications – Start communicating now. Consider sending out a memo to explain the upcoming ETS to employees to get a head start on vaccinations (or understanding possible staff exits). 

 

***

UPDATE Monday, Sept. 14, 2021

On Sept. 9, President Biden announced that OSHA is developing an emergency rule that will require workplaces with at least 100 workers to be fully vaccinated, or to have employees show a negative COVID-19 test at least once a week.

The announcement occurred on the same day that President Biden signed Executive Orders requiring federal employees and most federal contractors to be fully vaccinated. Medical facility workers, such as those who work in nursing homes, hospitals, and home health care, who treat Medicare or Medicaid patients, are also required to be vaccinated. 

Additionally, this emergency rule requires these employers to provide workers paid time off to get the vaccine. 

“The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers,” Biden said. “We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

So how does this affect you as an employer? Let’s break it down.

 

Mandate overview: who it affects and how

 

The new plan — with measures used to accelerate urgent rules that’s only been implemented ten times over a 50-year span — supplements OSHA’s National Emphasis Program, which was updated July.

As per Forbes, the mandate focuses on four main groups of workers and employers:

  1. Private employers with 100-plus employees – Either vaccination or weekly COVID-19 testing is required, or else OSHA will issue fines of up to $13,600 per violation.
  2. Federal employees and contractors – 90% of federal workers will be required to get vaccinated, though the requirement does not apply to non-executive branch federal employees. Any government workers covered can no longer opt out of the vaccination by way of regular testing and social distancing.
  3. Teachers & staff from federal education programs: This group includes head start and early head start programs operated by the Bureau of Indian Education and the Department of Defense.
  4. Most medical facility workers: Those who work in nursing homes, hospitals, and home health care, who treat Medicare or Medicaid patients – approximately 17 million workers.

Religious or medical exemptions recognized by law will still be eligible. And, employers must give employees both paid time off to get the vaccine and to recover from any side effects.

The U.S. Department of Health and Human Services is set to create rules and to enforce the vaccination requirement for the federal education sector, while OSHA is currently in the process of updating its emergency temporary standard.

Currently, there is no set date for implementation, but it’s expected to go into effect within the next few weeks.

Some argued that a mandate would put an increased burden on already struggling business owners. While others such as Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, called the mandate a “missed opportunity” to expand COVID-19 prevention plans to all workplaces.

If you’re looking for resources on how to implement a vaccine requirement or other safety measures can review resources from  SAFER: Safe Actions for Employee Returns.

SAFER is an NSC initiative aiming to develop specific resources and recommendations for employees by industry and risk. 

We’ll make sure to keep you updated with news and updates as they happen.

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About Worksite Medical

In most cases, OSHA requires medical surveillance testing, and at no cost to employees.

Worksite Medical makes that program easier with mobile medical testing.

We conduct on-site respirator fit tests, as well as audiometric exams, pulmonary function tests and heavy metal lab work, right on your job site. We also keep accurate, easy-to-access medical records for your convenience. You’ll keep your employees at work, and stay ahead of OSHA inspections.

With Worksite Medical, a mobile medical testing unit — we can bring all the resources of a lab to you. Our certified lab technicians can perform both qualitative and quantitative respirator tests to ensure a perfect fit.

Protect your team and your workplace now with Worksite Medical. Not sure what you need? Try our medical testing wizard here.

Give us a call at 1-844-622-8633, or complete the form below to schedule an on-site visit or to get your free quote!

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