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The ETS places additional burdens on employers (and employees) already straining under workforce shortages, supply chain issues, and varying standards and guidance related to COVID-19. The ETS is expected to face multiple legal challenges.
The OSHA ETS applies to employers with at least 100 employees company-wide.
It does not apply to:
The ETS also does not apply to the employees of covered employers:
At any time during the duration of the ETS, if an employer employs at least 100 workers, the requirements of the ETS will apply regardless of fluctuations in the size of the employer’s workforce.
OSHA’s ETS requires employers who have at least 100 employees (company-wide, not just at one facility) to institute either a mandatory vaccine policy or a weekly testing and mask policy.
Employers must inform employees of their policies and procedures designed to comply with the ETS, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines,” OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries and OSHA’s whistleblower protections, and the criminal penalties associated with knowingly supplying false statements or documentation.
If an employer adopts a mandatory vaccination policy to comply with the OSHA ETS, it must require vaccination of all employees (and of all new employees as soon as practicable), other than those:
The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
Acceptable proof of vaccination status is:
According to the OSHA ETS, the employer must maintain a record of each employee’s vaccination status. The employer must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, along with a roster of each employee’s vaccination status. Significantly, employers that have already ascertained vaccination status prior to the effective date of the ETS through another form, attestation, or proof and retained records, are exempted from re-determining the vaccination status of individuals whose fully vaccinated status has been previously documented.
In addition, the employer must maintain a record of each test result provided by each employee.
These records and roster are considered employee medical records and must be maintained as such records. They must not be disclosed except as required or authorized by federal law. These records and roster must be maintained and preserved while this section remains in effect, but are not subject to OSHA’s standard 30-year retention requirement.
According to the ETS, employers must provide paid time off for employees to get vaccinated (up to four hours) and to recover from any side effects. The ETS requires up to four hours of paid time to receive each dose of the vaccine, including travel time, at the employee’s regular rate of pay. The ETS requires “reasonable time and paid sick leave” to recover from the side effects of each dose of the vaccine.
OSHA permits employers to pass the expense for testing to employees, subject to the requirements of other laws.
Whether employers can require employees to pay for their own tests will depend on state law and whether testing is offered as a reasonable accommodation. Many states have laws requiring employers to pay the cost of any required medical exams or tests or expense reimbursement laws, which may be implicated.
The Fair Labor Standards Act (FLSA) and state law will govern whether employers have to pay for the time associated with getting testing and awaiting results.
It is also unclear at this time whether, under the FLSA, the cost of testing may drop an employee’s effective rate of pay below the federal minimum wage.
Although some states have their own state OSHA plans, such plans generally must be “at least as effective as” the standard set by OSHA. In those states, the federal OSHA ETS will not apply immediately.
There are currently 22 states that have OSHA-approved State Plans regulating private sector employers. (Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Tennessee, South Carolina, Utah, Vermont, Virginia, Washington, Wyoming, and Puerto Rico.) Those states have 30 days to adopt the federal standard or inform OSHA of their plans to do something else. In addition to their own OSHA plans, some states have passed laws prohibiting or limiting employers’ ability to require COVID-19 vaccines.
OSHA’s ETS is intended to comprehensively address the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. It, therefore, preempts any state or local requirements on these issues, except those from an OSHA-approved State Plan. Thus, the ETS preempts any state or local requirements banning or limiting an employer from requiring vaccines, face coverings, or testing.
According to the OSHA ETS, the COVID-19 test must be:
Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is done or observed by an employer.
Employees who are not fully vaccinated must submit to testing at least weekly if present 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.
For individuals who have received a positive COVID-19 test or who have been diagnosed with COVID-19, the ETS provides an exception from testing for the 90-day period following the positive diagnosis or test.
Employees who are not fully vaccinated and do not meet the testing requirements must be removed from the workplace pending a test result.
Regardless of vaccination status, employees who test positive for COVID-19 or who are diagnosed with COVID-19 must be removed from the workplace until they meet certain return-to-work criteria. The ETS does not require paid leave for employees who are removed, but acknowledges that other laws may impose such obligations.
Masking: Subject to limited exceptions, employers are required to enforce the wearing of masks for those who are unvaccinated when indoors and when occupying a vehicle with another person for work purposes. Like testing costs, the ETS does not mandate employers to pay for face coverings required by the ETS.
Reporting: Employers are required to report work-related COVID-19 hospitalizations and fatalities to OSHA (within 24 hours of hospitalization and eight hours of a fatality). Under OSHA’s normal reporting standards, work-related hospitalizations and fatalities must be reported only if they occur within a certain time period following the work-related incident (24 hours for hospitalization and 30 days for a fatality). Those time periods do not apply to work-related COVID-19 hospitalizations or fatalities, meaning, employers must still notify OSHA even if the hospitalization or fatality occurs after those time periods.
Notice: Employers must require employees to provide prompt notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
The OSHA ETS takes effect immediately, except in those states that have their own state plans. However, employers have 60 days to comply with the testing requirements of the ETS and 30 days to comply with the remaining provisions. State plan states have 30 days from the effective date to adopt the federal standard or inform OSHA of their plans to do something else.
As vaccine mandates increase, employers may face yet another headache in the continuing stream of pandemic-related concerns: employees presenting fake cards when asked to establish proof of vaccination. What can you do if you believe an employee has presented a fake vaccine card? And can your company be liable for relying on such falsified records?
How Widespread Is the Practice?
There are a growing number of Americans who are attempting to avoid vaccine mandates by using fake or bogus vaccination cards. As with the fake IDs used by underaged students to obtain alcohol, the internet has spawned a cottage industry marketing the bogus cards. The fake cards are increasingly available for vaccine hesitant customers, students, and employees who are willing to pay for the cards.
Fake vaccination documents can be purchased through a variety of social media sites, the black market, and other internet platforms. Vaccine-hesitant employees and customers have also been caught making homemade versions of vaccine cards.
Bogus vaccination cards are illegal under federal and certain state laws. Indeed, workers using counterfeit vaccine cards are running a significant legal risk. The use and forgery of government seals such as the CDC vaccination card is illegal, with violations ranging from a fine of up to $5,000 or up to five years imprisonment. Many state laws also prohibit such activity.
Unfortunately, there is increasing evidence that many vaccine-hesitant people are willing to take the risk of criminal prosecution.
There have been increasing demand by some leaders, including Senator Chuck Schumer (NY), for law enforcement to step up efforts to shut down internet or online sales of fraudulent certification cards.
What’s at Risk?
Regardless of how many counterfeit vaccine cards are floating around, the key question is whether you may face safety or legal exposure if any of your employees have falsified or misrepresented their vaccination status.
From a workplace safety standpoint, there is no doubt that someone who has skirted your rules can present a threat to other workers, members of the public, and other third parties at the worksite. If you have eased safety and social distancing measures for employees who are vaccinated, and/or discontinued any COVID-19 testing requirements for inoculated workers, an unvaccinated person who slips through the cracks could pose a danger to those around them. This concern alone requires you to take this emerging problem seriously.
Fortunately, your company’s legal liability in such a scenario is most likely low. As long as you have taken reasonable measures to check the vaccination status of your workforce, someone who has misled you by using a fake vaccine card is unlikely to subject the company to a high level of legal exposure. Certainly, your company could be sued, but your odds of successfully defending such a claim would hinge on the reasonableness of your verification process. This means that you should establish reasonable parameters to check vaccine cards, not simply allowing managers or other gatekeepers to give them a quick, cursory glance without reviewing key details. The more reliable your verification system, the better your odds of defeating any negligence claims relating to an employee’s use of a phony vaccine card. The obvious implication is that simply using an “honor system” appears less likely to withstand challenges, from plaintiffs’ lawyers or agencies such as OSHA.
What Can You Do About It?
If you suspect that an employee has presented a falsified vaccine card – what can you do about it? You can certainly take serious action, up to an including termination of employment. If you are concerned about this issue, thee following five steps can put your company in a much stronger position:
The Centers for Disease Control and Prevention (CDC) just substantially relaxed its pandemic guidance for K-12 schools. While certain restrictions remain and the guidance may continue to evolve in the coming months, especially if the COVID-19 vaccine becomes available for younger children, this new guidance provides schools with more information as they plan for the 2021-2022 school year. What do you need to know about this July 9th update?
What Has Changed?
The new CDC guidance has three important changes. First, it clarifies that fully vaccinated employees, staff, and students do not need to wear masks or facial coverings when indoors. Also, masks are not recommended for outdoor use unless your school is in an area of “substantial to high transmission,” and individuals are in crowded settings or engaging in activities that involve “sustained close contact” with others who are not fully vaccinated.
Second, the CDC’s guidance has a strong emphasis on full re-opening with in-person learning, regardless of whether all the prevention strategies can be implemented at your school. For example, the new guidance continues to recommend that students be spaced at least three feet apart, but with a new caveat: If maintaining physical distancing would prevent schools from fully reopening for in-person learning, schools could instead rely on a combination of other strategies like masking, testing, and improved ventilation.
Finally, the CDC strongly urges schools to promote vaccination among eligible students as well as teachers, staff, and household members, which it describes as “one of the most critical strategies to help schools safely resume full operations.”
What Has Not Changed?
The CDC continues to recommend prevention strategies, such as:
What Do These Changes Mean for Schools?
Of course, children under 12 are not yet eligible for vaccination so elementary students and some middle school students will need to continue to wear masks indoors. Even for students ages 12 and older, schools wanting to go mask-less will have to determine the best way to go about it. Because the masking guidance only applies to fully vaccinated individuals, your school may have an inconsistent patchwork of some employees and students wearing masks while others are not. These inconsistencies may be disruptive, difficult to enforce, and may unintentionally single out those who do not get the vaccine, including for medical or religious reasons.
The CDC seems to be encouraging schools to collect information on vaccine status before allowing employees and students to go mask-less inside. The CDC guidance includes a description of times when school administrators may want to require the universal wearing of masks and this includes when the school lacks a system to monitor the vaccine status of employees and students or if there is difficulty monitoring and enforcing mask policies that are not universal. Therefore, in states where there is no local restriction, discussed more below, schools that want to allow vaccinated employees and students to go mask-less should implement a process to collect information on vaccination status, track that information, and use it to inform their masking and distancing practices.
All schools also have to consider local and state law implications before implementing new policies on vaccinations and masks. For example, Florida private businesses, including schools, are free to establish their own mask policies. However, under the so-called vaccine passport law, Florida schools are prohibited from requiring vaccination documentation for students and parents to enter the campus or receive a service from the school. Nothing in the law prohibits schools from asking that parents and students provide proof of vaccination on a voluntary basis if they want to be mask-less on campus. Some Florida schools, however, are choosing to simply rely on parents’ and students’ representations that they are vaccinated or to ask them to sign an attestation certifying that they have been fully vaccinated because schools are not comfortable asking families for documentary proof of vaccination.
In Texas, meanwhile, while Governor Greg Abbott issued an executive order prohibiting the use of masks in public schools, private schools are also free to implement masking policies at their own discretion. Texas private schools should consider seeking proof of vaccination if they intend to allow vaccinated students and employees to go mask-less. Keep in mind, however, that the Texas legislature passed a bill prohibiting private schools from requiring students be vaccinated. Therefore, requiring vaccinations of all age-appropriate students is not a solution to the inevitable monitoring and enforcement challenges associated with a partially masked student body.
Finally, despite the CDC guidance, California currently still requires students and faculty to wear masks in indoor settings regardless of vaccination status. Schools should expect more guidance from the California Department of Public Health in the next several days.
As schools prepare for the new normal, you should keep up to date with the rapidly changing developments at the federal, state and local level. We will continue to monitor the developing COVID-19 situation and provide updates as appropriate.
In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings. Here’s what your business should consider as it decides whether to “unmask.”
The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.
Employers who are interested in relaxing mask requirements in the workplace should first consider the following.
Now that the country is on course to see all adult Americans eligible for COVID-19 vaccination in a matter of days, and an increasing number of employees are returning to the workplace, vaccination status is likely to be an increasingly common topic over the coming weeks and months. Which leads to these inevitable questions: when and how can employers ask their workers whether they’ve been vaccinated without getting into hot water? Whether it’s an innocent question asked while trying to make conversation or an inquiry posed to determine whether someone can return to normal duties, you need to understand your legal rights and obligations regarding this serious topic. Missteps can easily lead to legal complications.
A Simple Vaccine Question is Okay, But Be Wary of Going Further
The Equal Employment Opportunity Commission has indicated in recent guidance that it is generally permissible for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws.
And in many cases, the answer to that question alone may be all you really need. If you don’t really need to know anything beyond a simple “yes” or “no” to the question of whether they have been vaccinated – and in most cases, you won’t – the EEOC suggests warning employees not to provide any other medical information in response to your question to make sure you don’t inadvertently receive more information than you want.
If you require proof of vaccination, you should ask the employee to provide documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. The documentation you receive should be treated as a confidential medical record.
But issues could arise if you venture further than asking this simple question. Asking follow-up questions could trigger obligations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) depending on a variety of factors, so you need to tread cautiously if you take the questions any further.
Going Further with Your Inquiries
That’s not to say you can’t or shouldn’t ask anything further than eliciting a simply yes-or-no answer. There may be circumstances where it is advisable or even necessary to ask more. In those cases, the key considerations relate to the kinds of questions posed and the kinds of responses provided. These are the situations that raise potential legal issues that will likely require you to confer with your lawyer.
Questions about why the employee isn’t vaccinated
If you need information about why the employee has not yet been vaccinated, you might end up eliciting information about the employee’s medical status. Therefore, you can only pose such questions if they are “job-related and consistent with business necessity.” As the EEOC has said, you meet this standard if you have a reasonable belief, based on objective evidence, that an employee who is not vaccinated would pose a direct threat to the health or safety of themselves or others. This can be a challenging and complicated hurdle to clear. You should coordinate with legal counsel to determine whether you can meet this standard in your situation.
If you are treating workers differently based on vaccination status – for example, not allowing them to participate in certain work activities, work in certain locations, interact with the public or other employees, etc. – and you have confirmed with counsel that you have a valid justification for doing so, you may need to ask additional questions to assist with an interactive process. It may be that you need to provide reasonable accommodations to those workers unable to be vaccinated due to underlying medical conditions or sincerely held religious justifications. Each situation will require a case-by-case, fact-specific analysis, and you should be prepared to engage in substantive interactive process discussions related to any accommodation requests.
Questions about how the vaccination process went
If your managers are asking follow-up questions to find out how the employees fared after vaccination – especially after the second dose of Moderna and Pfizer vaccines – you need to recognize that this can be a slippery slope. Such questions could reveal information related to disability status (see above) that you would otherwise not want to know about. Caution your managers to tread carefully when asking such questions, even if their intent is innocent, and train them to know what to do if they receive information that should lead to human resources involvement.
Questions to help with an employee leave program
It is always permissible for your managers to ask about the medical status of an employee in order to help administer an employee leave program that includes absences for vaccine side effects, whether due to federal or state law or due to company policy. As with any such inquiries about medical status, however, make sure your managers know that they need to keep the information confidential to protect the privacy of any medical records received, and to only ask questions that lead them to gather the type of information necessary.
What Steps Should You Take Right Now?