[Editor's Note (11/18/21): This article includes an update regarding challenges to, and the temporary suspension of, OSHA’s Emergency Standards for large employers.]

Update: OSHA Emergency Standards for Large Employers Halted; Federal Contractor Vaccine Order Still on Track

The U.S. Court of Appeals for the Sixth Circuit will preside over legal challenges to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standards (the Standards), following a lottery to determine which federal appeals court would hear the consolidated lawsuits. The Standards, summarized below, mandate that employers with 100 or more U.S. employees require certain workers to be vaccinated against COVID-19 or undergo weekly testing, among other requirements. Court challenges to the Standards immediately ensued, and were focused primarily on attacks on OSHA’s implementation authority.

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld its earlier injunction halting enforcement of the Standards, ruling that they were likely unconstitutional and exceeded OSHA’s statutory authority. The Sixth Circuit will now rule more broadly on the issue (which could include an interim ruling lifting the Fifth Circuit’s injunction), and ultimately, the U.S. Supreme Court may need to decide the issue. In parallel, OSHA announced that it has “suspended activities related to the implementation and enforcement of the [Standards] pending future developments in the litigation.”

Though the large employer Standards have been halted, federal contractors and subcontractors must continue to prepare to comply with President Biden’s Executive Order 14042, which mandates full vaccination (with no testing alternative) for employees of certain federal contractors and subcontractors (unless entitled to legal accommodation). The Federal Contractor Order is summarized here, and the compliance deadline for full vaccination is January 18, 2022 (such that affected employees must have received their final vaccine dose no later than January 4, 2021). Federal guidance provides, however, that affected contractors may go beyond that deadline to review requests for medical and religious exemptions and induce, counsel and discipline recalcitrant employees according to a set timeline.

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On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued its long-awaited emergency standards to implement President Biden’s Vaccine/Testing Mandate for businesses with 100 or more employees (the Standards). At the time of this alert’s publishing, the Standards are being challenged in various federal courts, and at least one federal appellate court (the U.S. Court of Appeals for the Fifth Circuit) issued an injunction halting enforcement of the Standards. The Fenwick Employment Practices team will provide updates on the legal challenges; in the meantime, we offer the following summary of the Standards’ salient provisions.

Covered Employers. The Standards apply to all U.S. employers with 100 or more full- or part-time W-2 employees collectively in all U.S. locations (including employees who work from home or otherwise remotely). The 100 or more count must include temporary and seasonal employees engaged directly by the employer, but it excludes such workers who are engaged through a staffing agency. The Standards apply to both unionized and non-union workplaces.

Vaccination or Testing Requirements

Broadly, the Standards require covered employers to implement and enforce one of two policies: (1) a policy requiring full vaccination from COVID-19; or (2) a policy allowing employees to choose between either full vaccination or a weekly negative COVID-19 test and wearing face coverings at all times while indoors or occupying a vehicle with another person for work purposes (with limited exceptions for employees who are alone in a closed room, while eating or drinking or where face coverings are infeasible or hazardous).

The Standards do not apply to employees who (1) do not report to a workplace where other individuals, i.e., co-workers, customers and other third parties are present; (2) work from home; or (3) work exclusively outdoors. Further, where an employer chooses to implement a full vaccination policy with no testing/face covering alternative, such a policy does not apply to employees for whom a vaccination is medically contraindicated; where medical necessity requires a delay in vaccination; or where the employee is legally, i.e., pursuant to applicable workplace discrimination laws, entitled to an accommodation because of a disability or sincerely held religious belief.

The Standards do not compel employers to offer or implement a testing/face covering alternative to full vaccination. As such, employers may continue to enforce existing, or implement new, policies that require full vaccination without a testing alternative, and apply such policies to all employees regardless of whether they work from home, exclusively outdoors, etc. Moreover, the Standards do not apply to employees who are covered by, and they do not diminish in any respect the provisions of, either or both of the previously issued federal safety standards applicable to federal contractors and healthcare service entities.

Development of a Written Policy; Notice Requirements. The applicable policy must be in writing, made readily accessible to all employees through the employer’s normal methods of distributing information to employees and, at a minimum, address the following:

  • How an employee’s vaccination status will be determined and how information confirming vaccination status will be collected;
  • How time off for vaccination purposes and for any side effects related to vaccination will be handled;
  • Employee notification obligations if they test positive for COVID-19;
  • Information about the employer’s procedures for COVID-19 testing and face coverings (if a testing and face covering alternative is provided);
  • How the policy is being distributed to employees (i.e., through electronic or other means);
  • Disciplinary action for employees who do not abide by the policy;
  • The policy’s effective date and applicable deadlines;
  • Information on how employees may request employer records regarding their own vaccination status and the aggregate number of employees vaccinated at the workplace;
  • Procedures for compliance and enforcement; and
  • Statements specifying that employees will not be disciplined or retaliated against for reporting violations or filing complaints.

Model policies published by the U.S. Department of Labor are available here, and employers are strongly encouraged to utilize them.

In addition, employers must publish the following guidance from the CDC: Key Things to Know About COVID-19 Vaccines, and should supply employees with the following notice explaining potential criminal penalties associated with supplying false information to their employer.

Verification of Vaccination and Recordkeeping. Covered employers must verify vaccination by obtaining from employees the following forms of proof:

  • A record of immunization from a healthcare provider or pharmacy;
  • A copy of the CDC COVID-19 Vaccination Record Card (CDC Form MLS-319813_r);
  • A copy of medical records documenting the vaccination;
  • A copy of immunization records from a public health, state or tribal immunization information system; or
  • A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s).

Employers may accept clear and legible digital copies (such as a digital photo, scanned image or PDF), state government-issued records showing the same information as the CDC COVID-19 Vaccination Record Card, or QR codes that display the vaccination information when scanned.

Employers must maintain a physical or electronic record and proof of each employee’s vaccination status and therefore may not accept proof of vaccination verbally or by allowing the employee to simply show the employer their proof of vaccination status. Employers who accept QR codes must ensure that they retain a copy of the information accessed by scanning the QR code.

Employees who have lost their vaccination cards or are otherwise unable to produce acceptable proof of vaccination must attempt to obtain a replacement or alternative forms of proof (such as from their vaccine administrator or state health department).

If employees are unable to obtain an alternative form of proof, employers may accept a signed and dated statement from the employee (1) attesting to the employee’s vaccination status (fully or partially vaccinated); (2) attesting that the employee lost or is otherwise unable to produce another type of proof of vaccination; and (3) containing the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” The employee should also include in the statement, to the best of their recollection, (1) the type of vaccine administered; (2) the dates of administration; and (3) the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

The Standards do not require that employers monitor for or detect fraud. However, if an employer has knowledge that the proof submitted by an employee is fraudulent and nevertheless accepts and maintains such fraudulent proof as a record of compliance with the Standards, it may be subject to penalties.

Covered employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee or their authorized representative by the end of the next business day after the request. Employers must also make available to employees within the same time frame the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. This aggregate information must also be provided to OSHA upon, and within four hours of, its request.

Covered employers must also maintain a roster of each employee’s vaccination status that sets forth whether the employee is (1) fully vaccinated; (2) partially vaccinated; (3) not fully vaccinated because of a medical or religious accommodation; or (4) not fully vaccinated because they have not provided acceptable proof of their vaccination status. All employees, regardless of vaccination status, must be listed on the roster.

Employers must treat vaccination records and the employee roster as confidential medical records and must preserve them as long as the Standards remain in effect.

If an employer has already collected and maintains proof or attestation of vaccination from employees prior to the effective date of the Standards, the employer does not have to re-collect proof. This includes records that do not have all the required elements set forth above or records of self-reporting of vaccination without any form of proof, so long as the employer has maintained a record of ascertaining the employee’s vaccination status (such as through email correspondence, a dated form or employer portal).

Protected and Paid Leave. The Standards require covered employers to provide employees reasonable time—up to a maximum of four hours—of paid leave at the employee’s regular rate of pay to receive each primary vaccination dose during working hours. “Reasonable time” includes time spent registering and completing paperwork in connection with the vaccination, traveling to and from the vaccination site and time spent at the vaccination site (including for post-vaccination monitoring).

Employers are not required to grant paid leave to employees who receive the vaccine outside of work hours. Employers may not require employees to use their accrued sick or vacation leave or paid time off to offset this leave. In circumstances in which an employee requires more than four hours to receive a primary vaccination dose, the additional time, so long as it is reasonable, is unpaid protected leave.

Covered employers must also provide employees with reasonable time and protected paid sick leave to recover from side effects experienced following each dose. The Standards do not specify the amount of paid sick leave employers must provide for this purpose, but permit employers to set a reasonable cap. OSHA presumes that two days of sick leave per primary vaccination dose meets this requirement.

Employers may require employees to use their accrued paid sick leave or PTO to recover from side effects, but if the employee has no such accrued leave, the employer must provide paid leave for this purpose. Employers may not require employees to use vacation leave or advanced sick leave or require the employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

Employers are not required to provide retroactive paid leave to employees who were vaccinated prior to the promulgation of the Standards.

Penalties for Non-Compliance. If covered employers fail to comply with or violate the Standards, they could be subjected to fines for a “Series Violation,” which carries a maximum fine of $13,653 per violation. Repeated and willful violations for noncompliance, however, are significantly more costly and carry a maximum fine of $136,532 per violation.

Preemption of Conflicting State and Local Laws. The Standards make clear that they preempt and invalidate any state or local laws that ban or limit an employer’s authority to require vaccinations, face coverings or testing. For example, in states such as Montana, Texas and, most recently, Alabama, that have already put in place such bans and limits, the Standards would preempt such state laws. That said, preemption will almost certainly be challenged by one or more states.

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