• Kevin Cleveland and Hannah Moon

Federal Vaccine Mandate

OSHA finally released its “interim final rule” on Friday in response to the federal vaccine mandate for employers with 100 or more employees. The final form of the rule is a “COVID-19 Vaccination and Testing; Emergency Temporary Standard.” (OSHA ETS) Though the Fifth Circuit Court of Appeals is currently prohibiting enforcement of these rules and other related lawsuits have been filed, employers should start preparing in case the new standards are allowed to go into effect. We’ve summarized most of the key components below, but the full 150+ pages of new OSHA ETS can be found here. Below we also discuss the current state of the federal contractor rule and the federal rules regarding healthcare and schools.


This article is long because the federal OSHA ETS includes a long list of requirements and even longer explanations for those requirements. If your company falls under one of the federal mandates discussed in this article and you are concerned that following the mandates will affect your business, please reach out to us so we can discuss ways that may allow your company to remain compliant with federal regulations without losing large chunks of your workforce or otherwise endangering your business.


Who’s covered?


All employers with a total of 100 or more employees at any time this section is in effect fall under these standards, with the following exceptions:


Certain employees do not fall under these standards, even if they work for a covered employer:

  • Employees working where no one else is present;

  • Employees working from home; and

  • Employees working exclusively outdoors.


When is it effective?


The rule is effective on November 5, 2021, and employers must comply with the standards by December 6, 2021. Regular testing of employees who are not fully vaccinated must begin by January 4, 2022.


What is required?


(1) Written Vaccination Policy


Covered employers must establish, implement, and enforce a written mandatory vaccination policy or a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.


Employees may still be entitled to reasonable accommodation, absent undue hardship, if they cannot be vaccinated and/or wear a face covering because of a disability or due to a conflict with their sincerely held religious belief, practice, or observance. Please make sure to contact us if you have any uncertainty regarding handling such requests as improperly handling such requests can lead to expensive discrimination lawsuits.


(2) Determination of Vaccination Status


Covered employers also have to determine each employee’s vaccination status, including requiring proof. Such proof could be a variety of things, including the employee’s COVID-19 Vaccination Record Card. If the employee is unable to produce acceptable proof of vaccination, they may provide a signed and dated statement by the employee attesting to their vaccination status and that they are unable to produce vaccination records. This self-attestation document must include 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.”


If employers already received proof of vaccination or a self-attestation letter showing that an employee is fully vaccinated prior to these standards, that proof is sufficient. Employees who do not provide proof of vaccination or a self-attestation letter will be treated as not fully vaccinated. Employers must maintain records of employees’ proofs of vaccination and keep a roster of each employee’s vaccination status while these standards are in effect. The records and roster must be treated as medical records and not disclosed except as required or authorized by law.


(3) Employer Support of Vaccination


Employers also must support vaccination by providing a reasonable amount of paid time for employees to get vaccinated, up to 4 hours at the employee’s regular rate of pay, if the employee is vaccinated during working hours. Employers must also provide reasonable time and paid sick leave for employees to recover from side effects following any primary vaccination dose (i.e., the first two doses in a two-dose series, not including boosters).


(4) Testing for Unvaccinated Employees


Employers must ensure that employees who are not fully vaccinated comply with one of the following options:


  1. If they report at least once every 7 days to a workplace where other individuals are present:

  2. Tested for COVID-19 at least once every 7 days; and

  3. Must provide documentation of the most recent COVID-19 test result to the employer within a week from the last time they provided a test result.

  4. If they report during a period of 7 or more days to a workplace where other individuals are present:

  5. Tested for COVID-19 within 7 days prior to returning to the workplace; and

  6. Must provide documentation of that test result to the employer upon return to the workplace.


Employers are not obligated under these standards to pay for any costs associated with testing, though they may be required to pay under other laws, regulations, or collective bargaining requirements. We believe this to mean that, for employees with religious or disability accommodations, employers, as a part of the accommodation, may still be required to pay for tests. Fortunately, free testing is available to everyone in California, and more information on testing can be found here.


(5) Employees who Test Positive


Regardless of vaccination status, employers must require employees to notify them when the employee receives a positive test or is diagnosed with COVID-19 by a licensed healthcare provider. The employer must immediately remove those people from the workplace and keep them removed until they receive a negative result, meet the return-to-work criteria in the CDC’s “Isolation Guidance,” or receives a recommendation to return to work from a licensed healthcare provider.


Again, this standard does not require employers to provide paid time to any employee for removal, but paid time may be required by other laws, etc.


(6) Face Coverings


Employers must make sure employees who are not fully vaccinated wear face coverings indoors and when occupying a vehicle with another person for work purposes, except in the following circumstances:

  • When the employee is alone in a closed room;

  • When the employee is actively eating or drinking;

  • As needed for security purposes;

  • When they’re wearing a more protective respirator or facemask; or

  • When the employer can show use of face coverings is infeasible or creates a greater hazard.


Employers cannot prevent employees from voluntarily wearing a face covering or facemask unless the employer can demonstrate that doing so would create a hazard of serious injury or death. Employers also must not prohibit customers or visitors from wearing face coverings.


(7) Information to Employees


Employers must provide employees with the document “Key Things to Know About COVID-19 Vaccines,” as well as some other information about laws which prohibit employers from discrimination against employees for reporting work-related injuries or illness.


(8) Reporting


The standards include requirements for employers to report work-related COVID-19 fatalities and hospitalization, among other reporting requirements.


Do these standards preempt California state and local standards?


Yes, these standards preempt inconsistent state and local requirements, including requirements that ban or limit employers’ authority to require vaccination. Be aware that Cal/OSHA has the ability to respond with even more protective measures, so we will be keeping an eye on what they now do in response while awaiting the results of court challenges to the federal OSHA ETS.


What if I fall under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors?


Federal contractors and subcontractors are only affected by this guidance if they have a contract or “contract-like instrument” (1) for services, construction or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions; or (4) entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.


There is no small business (e.g., less than 100 employee) exception. However, the following contracts are specifically not considered “covered contracts” under this guidance:

  • Supply contracts providing only “goods” and equipment to the federal government (and similar subcontracts to federal prime contractors);

  • Grants;

  • Indian tribe contracts;

  • Contracts with a value equal to or less than the Federal Acquisition Regulation (FAR) simplified acquisition threshold (currently $250,000);

  • Contracts involving employees performing work outside the United States; and

  • Subcontracts solely for the provision of products.


Covered employees include any employees who work “on or in connection with a covered contract,” which includes those who perform duties who perform duties which are necessary for performance of the covered contract but who are not directly engaged in performing the specific work of the contract such as HR, billing, and legal review. This is true even if they work from home or remotely. Thus, if an employer has employees who never touch federal projects, then those employees may not fall under this requirement. Just remember working on the contract is very broadly defined.


According to that guidance, covered employees at covered workplaces are required to conform to the following protocols:

  • Covered employees have to be fully vaccinated or have an exemption in place by December 8, 2021;

  • Individuals (including covered contractor employees and visitors) must comply with the Guidance masking and physical distancing rules while in covered contractor workplaces; and

  • Covered contractors must designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.


The timeline for implementation requires that, after November 14, the above protocols must be incorporated into new contracts. For contracts prior to October 15 where there is ongoing performance, the requirements must be incorporated the next time an option is exercised or an extension is made, so, for many employers, whether they are covered will depend on when they get a contract which includes the above requirements.


“Covered contractor workplace” is defined as any location controlled by a covered contractor where any employee of a covered contractor working on, or in connection with, a covered contract is likely to be present during the performance of the contract. Private homes are specifically excluded so if people are working from home they don’t need to mask. Likewise, if you have people who only ever work at other sites, they would only need to follow CA and local guidance regarding masking/distancing. Note, this requirement applies to everyone, including guests, who visit such workplaces. The requirement for masking and physical distancing is linked to whatever the current CDC guidance is and was summarized as:

  • Fully Vaccinated Employees: In areas of high or substantial community transmission, fully vaccinated individuals must wear a mask in indoor settings, except for limited exceptions discussed in the Guidance. In areas of low or moderate community transmission, fully vaccinated individuals do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.

  • Non-Fully Vaccinated Employees: Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings (as outlined in the Guidance), regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least 6 feet from others at all times, including in offices, conference rooms, and all other communal and workspaces.


Covered contractors are required to check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocols.


For more information, the full Guidance can be found here.


What if I am a healthcare service provider or healthcare support service provider?


The Centers for Medicare & Medicaid Services and the Department of Health and Human Services also released an interim final rule on Friday, November 5, 2021, which lays out requirements for most Medicare- and Medicaid-certified providers and suppliers. Phase 1 regulations must be implemented by December 6, 2021, while Phase 2 regulations must be implemented by January 4, 2022. The full rule can be found here. If you fall into this category and would like to discuss how these rules will affect your business, please reach out to us, and we’ll walk through how to handle these rules in the least disruptive manner to your business.


What about individuals working for or with schools?


As we reported on October 5, 2021, the California Department of Public Health has also been publishing vaccine and masking requirements for school settings, so keep an eye on what orders may apply to you. Additionally, schools with 100 or more employees will fall under the new federal vaccine mandate as well.


CONCLUSION

Due to court-related challenges, employers should be aware that the final deadline for the OSHA ETS will likely change. We will keep you informed of any such changes. Nonetheless, employers who fall under any of the above rules should start preparing for them if they have not already had to or chosen to implement the above changes. If you have any questions about the new vaccination rules, need assistance implementing these rules in a way which is least disruptive to business, or need anything else, please reach out to the experts at Young, Cohen & Durrett, LLP at (916) 569-1700.



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