November 15th, 2021 | Angela Preston, SVP and Counsel, Corporate Ethics and Compliance, Sterling

Covid-19 Vaccine Mandate: What You Need to Know

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced the widely anticipated mandate requiring Covid-19 vaccines and testing for large US employers. The regulation is an Emergency Temporary Standard (ETS), is 154 pages long, and can be found in its entirety in the Federal Register. It targets employers with 100 or more employees. What does this mean for you?

The ETS requires covered employers to either (1) devise, implement, and enforce a mandatory Covid-19 vaccination policy, or (2) instead adopt a policy requiring employees “to elect either to get vaccinated or to undergo regular Covid-19 testing and wear a face covering at work.” In either case, the deadline to have policies in place is December 6, 2021, and the date to 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 seven days before returning to work (if away from the workplace for a week or longer) is January 4, 2022. The fundamental premise on which the mandate is based is the finding that Covid-19 poses a “grave danger” to the workplace and is a threat to workers. The ETS aims to protect workers by strongly encouraging vaccination.

While the ETS is lengthy, I have put together the following, which covers some of the key points in a nutshell.

Who is Covered?

The mandate applies to employers with 100 or more employees across all US locations. Part-time employees are included in calculating the headcount, as are employees who work from home and those working out of doors, but independent contractors are not. The actual employer of workers is the responsible party for compliance under the ETS, which addresses questions around which party is responsible in the case of temporary staffing agencies or contract workers who are employed by agencies. Application of the ETS does not extend to workplaces that are covered under other mandates, such as federal contractors or those healthcare workers covered under OSHA’s June 2021 healthcare ETS.

While included in the total headcount, the vaccine and testing requirements of the ETS don’t apply to employees who work from home, employees who work exclusively outside, or employees who report to a workplace where there are no other employees or other people present.

Options for Compliance

Employers have an option to either enforce a mandatory Covid-19 vaccination policy or create and enforce a policy to either elect to be fully vaccinated or undergo weekly Covid-19 testing and wear a mask while at work. “Fully vaccinated” is generally defined as two weeks after completing a primary vaccine. Booster shots are not included in the definition, and natural immunity is not allowed as a consideration.

Employers must cover reasonable time needed by employees to get vaccinated, including up to four hours of paid time and reasonable paid sick leave for recovery. However, if an employee is unvaccinated, employers are not required to pay for the necessary regular Covid-19 testing or the use of face coverings. As with other mandates, it is important to consider whether employees are entitled to a reasonable accommodation due to a medical condition or a sincerely held religious belief, and whether such an accommodation creates an undue hardship for the employer.

Proof of Vaccine Compliance

To demonstrate that they are in compliance with the new measures, the ETS says employers must maintain records of employee vaccine status. Employers are required to determine the vaccine status of each employee and obtain acceptable proof, which includes a copy of a CDC vaccination card — either digital or in print format. Employers must keep a roster of each employee’s status, as well as an actual paper or digital copy of the record. According to the ETS, Covid-19 vaccination records are to be treated like confidential medical information, and employers need to protect the status of each individual employee. As such, employers should not require badges or other outward or publicly visible indication of vaccine status.

Testing and Wearing Face Coverings

If an employer has given employees the option to choose to do weekly testing and wear face coverings while working, employers need to make sure the testing occurs at least weekly. For those employees who are unvaccinated and have been out of office for a week or more, employers must make sure that the employee has been tested within seven days of the return to work. Employers must maintain and preserve records of each test result required to be provided by each employee pursuant to the ETS while the ETS remains in effect. If employers have already maintained the required records, those records are sufficient.

Tests can be both PCR and antigen tests, but antigen tests can’t be both self-administered and self-read by the employee unless observed by the employer or health proctor (i.e., by a telehealth proctor/observer). Employers can proctor over-the counter (OTC) tests used according to instructions, or they may allow remote telehealth proctoring of OTC tests as another option. Antibody tests are not permitted under the rule. Pool testing may be permissible if it complies with CDC and FDA specifications and recommendations.

The federal mandate for face coverings requires unvaccinated employees to wear a face covering when indoors or in a vehicle with another person for work. Fully vaccinated people who work with unvaccinated people are not required to wear face masks under the federal rules, but other state or local requirements may come into play for face covering requirements.

Notably, the ETS allows employers to pass on the cost of testing and face coverings to unvaccinated employees, shifting the burden to individuals who choose to test instead of getting the vaccine. Employers should keep in mind that some states may already require employers to pay for mandatory tests and job-related expenses.

To assist with compliance, OSHA published a detailed FAQ and two template policies, as well as other helpful resources on its website. The deadline to establish a policy on vaccination, determine vaccination status including proof, records, and rosters is December 6, 2021. The deadline to ensure employees who are not fully vaccinated are tested weekly is January 4, 2022. A full table with the requirements and dates is provided in the FAQs.

The ETS has faced a number of legal challenges, including a stay issued Saturday, November 6 by the 5th U.S. Circuit Court of Appeals. Other challenges have been filed in multiple federal courts, and Bloomberg Law has speculated that the cases will likely be consolidated into one court under the federal rules for multi-circuit litigation. The stay and other challenges do not prevent employers from taking steps to meet the deadline for compliance. The state legal challenges may ultimately be preempted by federal law, and the employers may not want to wait for resolution of legal claims.

Employer Key Take-Aways

  • Consult with legal counsel when considering options.
  • Be sure to establish policies to cover paid time for obtaining the vaccine and covering necessary recovery time.
  • Consider the implications of covering test costs and possible disincentive to employees that may discourage vaccination.
  • Take into account employees who may be entitled to reasonable accommodation due to health conditions or reasonably held religious beliefs.
  • Consider state laws that may require covering costs of testing or other required expenses.
  • Be sure to establish means for tracking and obtaining proof of Covid-19 vaccines and testing if applicable.
  • Treat Covid-19 vaccine records like confidential medical records.
  • Consult the OSHA detailed FAQ to answer questions on the ETS.

Sterling offers both Covid-19 testing and vaccine collection services, and will continue to keep pace with current and evolving regulations surrounding this topic. This blog post is part of a Compliance blog series, diving into compliance trends, best practices, and updates.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.