Webinar: Dykema Legal Experts Explain OSHA’s COVID-19 Emergency Temporary Standards for the Workplace

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With a potential federal vaccination or testing requirement for businesses on the horizon for employers of 100 or more, legal experts at Dykema hosted a webinar to explain some of the terms of these new regulations to help employers prepare.

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Compliance
Important Deadlines
Requirements
 – Employee Supports
 – Positive Tests
 – Face Coverings
 – Informing Employees
 – Reporting
Vaccine Mandate Policy
Testing Policy Option
Enforcement
Presentation Links


In an effort to reduce the potential spread of COVID-19 in the workplace – especially as many companies return to the office in some capacity – the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS). OSHA will issue an ETS when employees are exposed to a “grave danger” that these emergency measures can help mitigate. The ETS has a six-month duration and is subject to judicial review based on whether a grave danger actually exists.

Who needs to comply?

Employers with 100 or more employees are subject to this order. Some considerations for this 100+ employee count include:

  • Full- and part-time employees including seasonal and temporary workers at all U.S. locations should be accounted for.
  • Employees of related entities where safety matters are handled as one company should be accounted for.
  • For franchisees, they do not need to count the franchisor’s employees.
  • For staffing companies, count the employees as employed by the staffing companies. Temporary employees employed by a staffing company do not count toward the host company.

The timeline for determining eligibility based on the 100+ employee count is based on how many employees you had as of Nov. 5, 2021. Even if the count decreases thereafter, the company must comply with the ETS. If an employee grows to or above 100 employees after this time, they become eligible to comply with the ETS.

Two exclusions are employers covered by the OSHA Health Care ETS from June 2021 and those covered by Executive Order 14042 for federal contractors from September 2021.

Employee Exceptions
There are limited instances of employees at companies of 100+ would be exempt from these rules, but would still count toward an employer’s employee count. They include:

  • Employees working where no other individuals are present (other employees, customers, etc.)
  • Employees working exclusively from home that do not report to the office or worksite at all.
  • Employees working exclusively outdoors on all workdays, who do not occupy vehicles with others as part of their job, and who work the entire day outdoors.

Important Deadlines

By Dec. 6, 2021, employers must:

  • Have an employer policy written to share with employees regarding vaccinations and a decision on if your business will use the testing alternative for those not fully vaccinated.
  • Gather data about the determination of vaccination status for all employees.
  • Have a mandatory face mask policy for employees in the workplace not fully vaccinated.

By Jan. 4, 2022, employers must:

  • Have an employee testing process in place for those not fully vaccinated.

Michigan is among 28 states and territories with their own safety agencies, meaning they have to decide within 15 days if they will comply with OSHA standards or implement their own and implement within 30. If they choose to implement their own it cannot be any less protective than the OSHA ETS.

What are the requirements?

First, employers need to develop a written policy and decide whether they will mandate vaccination or offer a testing alternative for those who choose not to get the vaccine by the December deadline. OSHA offers sample policies to help businesses get started. Next, employers must determine how to verify employee vaccination status – whether not, fully, or partially vaccinated – and outline what type of documentation will be accepted as proof (vaccination card, immunization or medical records, etc.). Employers will also need to develop an employee roster, which includes vaccination status, and implement a recordkeeping process for vaccination status and test results. These items must also be completed by the December deadline.

Employee Supports
By December, employers must offer up to four hours of paid time per primary vaccination dose at the regular rate of pay and includes travel time. Employers are not required to reimburse travel costs or pay for vaccinations during non-working hours. Employers, however, cannot require the use of existing paid leave like sick or vacation days. This also entails “reasonable” time for recovery. The ETS notes that employers should presume up to two days of paid leave per primary vaccination dose for compliance. This includes recovery time for vaccinations received during non-working hours. This recovery time can require the use of existing paid sick leave or paid time off, but not vacation time.

Responding to a Positive COVID-19 Test
If an employee tests positive for COVID-19, the employer is required to receive notice from the employee and the employee must be removed from the workplace until one of three things happens:

  • An employee receives a negative NAAT test (a particular, more sensitive type of test).
  • The employee meets CDC return-to-work criteria in “Isolation Guidance.”
  • Licensed health care provider advises that a return is safe.

This must be explicitly outlined in the employer policy and include all negative COVID-19 tests, work-related or otherwise.

Face Coverings
Employees who are not fully vaccinated must wear a face covering when indoors or in a vehicle with others for work purposes with limited exceptions including:

  • Being alone in a room with walls and a closed door. This means that face coverings must still be properly worn even in cubicles or workspaces with plexiglass barriers.
  • For limited times when eating or drinking, or for identification purposes.
  • When wearing a respirator or face mask.
  • When an employee can show the use of a face covering is infeasible or creates a greater hazard.

Employers are responsible for ensuring face coverings are properly worn and replacing them if necessary. While the ETS does not require employers to pay for face coverings, other laws may.

Informing Employees
By the December deadline, employers must provide a written explanation of the ETS and policies and procedures to employees at a literacy level and language understandable for employees.

Reporting
Employees must also report all work-related fatalities and hospitalizations to OSHA within eight hours or 24 hours of learning of the incidences respectively. Records must also be available for inspection or copying. Individuals may request vaccine documentation or test results or aggregate number of fully vaccinated employees and total number of employees in a workplace, which must be provided by the end of the next business day. If OSHA requests a written policy, aggregate number of fully vaccinated employees, and total number of employees, and employer must provide that within four business hours. For all other documents or records required to be maintained requested by OSHA, employers must share them by the end of the next business day.

Mandatory Vaccination Policy

Employers that opt to mandate vaccination must have a written policy that includes the appropriate exemptions for ADA and Title VII religious belief, practice, or observance reasonable accommodations. OSHA also offers a sample policy for vaccine mandates. The policy must outline a definition of “fully vaccinated,” how to request exemptions, employee support terms, etc.

Vaccination or Testing Policy

For this type of policy, employers must determine who needs to be tested. This includes employees who are not fully vaccinated who report to the workplace where others are present at least once every seven days. The employee must provide test result documentation no later than seven days following the date of the last provided test result. For employees not fully vaccinated that do not report at least once every seven days, they must be tested seven days prior to returning to the workplace and provide test result documentation upon their return to the workplace. The ETS does not require employers to pay for testing, but other laws may. Employees that fail to provide test results must be removed until one is provided.

Because employers have the option of offering testing, unionized employers must bargain over the effects because of employer discretion under the ETS.

Testing Types
Approved tests include those authorized by the FDA to detect current infection. These include diagnostic when someone has signs or symptoms, and screening when someone is asymptomatic or has had no known exposure. NAAT and antigen tests are approved, but antibody tests are not. Tests cannot be self-administered and self-read by employees unless supervised by an employer or observed by an authorized telehealth provider.

Enforcement

For OSHA inspections, employers have the right to require OSHA to get a warrant or a subpoena or to have a representative present. Employers may also challenge inspections in federal district court. Employers can contest citations through the OSH Review Commission and possible court review. Penalties $13,653 per “serious” violations and per day beyond abatement date for “failure to abate.” “Willful” violations are $136,532 per violation. Criminal charges are possible for willful violations that cause employee death, giving advance notice of an inspection without authority, and making a false statement, representation, or certification.

Watch the webinar recording and view the presentation slides.

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