The Occupational Safety and Health Administration (OSHA) recently issued new COVID-19 rules for most employers in the private sector with 100 or more employees. The OSHA Emergency Temporary Standard (ETS) on Vaccination and Testing became effective on November 5, 2021. However, just one day after on November 6, the Fifth Circuit Court of Appeals issued an emergency stay of the OSHA ETS that applies nationally. While the current fate of the OSHA ETS is uncertain, employers are well-advised to become familiar with the ETS and prepare now as if the standard will become effective.
In addition to the release of the OSHA ETS standard, the U.S. Centers for Medicare & Medicaid Services (CMS) issued another set of requirements for healthcare workers in facilities that participate in Medicaid and Medicare. The CMS’s interim final rule (IFR) is an emergency regulation that took effect on November 5, 2021.
This alert provides a summary of key requirements under the OSHA ETS and the CMS IFR.
OVERVIEW OF OSHA ETS REQUIREMENTS
Employers With 100 or More Employees Are Covered
The OSHA ETS generally covers private sector employers with 100 or more employees. Part-time workers, employees who work from home and temporary and seasonal employees directly employed by the company must be included in the headcount when determining whether the employer is covered. Independent contractors are not included. The ETS does not apply to federal contractors covered by the federal contractor mandate (i.e., federal contractors are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors) or to healthcare employers covered by the Healthcare ETS issued by June in 2021.
Employees Must Be Vaccinated or Subject to Weekly Testing
The ETS requires employers to adopt, implement and enforce a written policy implementing one of the following:
1. A mandatory COVID-19 vaccination requirement for all employees; or
2. A requirement that employees must submit to weekly COVID-19 testing, show a negative test and wear masks while working.
The ETS vaccine or testing mandate does not apply to employees who work remotely from home or other locations where they are not in the presence of other employees or customers, and those who work exclusively outdoors. However, these employees are still included in the employee headcount in determining whether the ETS applies. Also, employees with legally recognized medical and religious exemptions may be excused from being vaccinated, but would be subject to the weekly testing requirement.
Employers Must Provide Employees Reasonable Paid Time Off
The OSHA ETS requires employers to provide reasonable paid time off (up to four hours) to enable employees to get the vaccine, and provide reasonable time and sick leave to recover from any negative side effects employees experience from the vaccine. Workers must complete the vaccination regimen by January 4, 2022.
Employees who are subject to weekly testing must be removed from the workplace if the employee cannot produce a negative COVID-19 test or tests positive for COVID-19.
The ETS comes with significant recordkeeping, document retention and reporting requirements for covered employers. For example, employers must maintain employee vaccination records and COVID-19 test results for employees subject to weekly testing. Employers must also provide certain information to employees on vaccines and the requirements of the OSHA ETS. Additionally, employers must report any work related COVID-19 fatalities and hospitalizations to OSHA within a specified time. Employers may face significant penalties from OSHA for non-compliance with the ETA.
Deadlines for Compliance
Assuming the Fifth Circuit Court of Appeals stay is lifted and no changes are made to the OSHA ETS, employers must comply with most requirements by December 5, 2021. This includes establishing a written vaccination policy that: (1) requires employees to report positive COVID-19 tests; (2) removes from the workplace any employees who test positive; (3) require employees who are not fully vaccinated to wear a face covering at work; and (4) provide employees with information about the ETS and certain other information such as workplace policies and procedures, vaccination efficacy, and the possibility for criminal penalties for supplying false information. Employers must also determine the vaccination status of each employee, provide paid time off for employees to get vaccinated, and establish a reporting policy and recordkeeping policy for COVID-19 related records. The deadline for requiring full vaccination status and weekly testing of employees to begin is January 4, 2022. Employees who have received a full course of vaccination shots by January 4 are exempted from testing.
OVERVIEW OF CMS IFR REQUIREMENTS
The CMS IFR is estimated to effect 17 million workers and applies to healthcare workers at facilities that participate in Medicaid and Medicare including Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal 2 Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities. Unless exempted due to medical or religious reasons, all workers employed by such facilities, except those whose work is 100% remote, must have their first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine by December 5, 2021.
Workers must be “fully vaccinated”, by January 4, 2022.
Similar to the OSHA ETS, covered facilities must develop, by December 5, 2021, a plan and procedure for requiring employees to obtain the COVID-19 vaccine, collecting and storing proof of vaccination status, reviewing medical and religious exemptions, and implementing additional precautions for any staff who are not vaccinated, in order to mitigate the transmission and spread of COVID-19. The CMS IFR, however, is not identical to the ETS. For instance, there is no weekly testing option for workers in these facilities.
For Connecticut employers, the CMS IFR comes off the heels of Governor Lamont’s Executive Order (EO 13G), which mandated certain workers to be vaccinated by September 27, 2021. You can find more information here.
For further information, please contact:
Associate (*Not yet admitted to practice in Connecticut)
This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.