Private Large Employer Vaccine or Testing Rules Published
This morning, the Occupational Health and Safety Administration (OSHA), released its much anticipated rule, the Emergency Temporary Standard (ETS), requiring COVID-19 vaccines or weekly testing for private employers with 100 or more employees. An additional factsheet was released from the White House, which you can view here.
Here is what you need to know:
Covered Employers:
Employers with a total of 100 or more employees at any time the ETS is in effect. Employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors are exempt from these mandates. The 100 employee count includes multiple employer locations. For example, the ETS states “If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.”
Vaccinations:
All covered employers must ensure that their employees have received either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson by January 4th.
Testing:
After January 4th, covered employers must ensure that all unvaccinated employees are tested on a weekly basis. For those employees who are unvaccinated, they must wear facemasks while in the workplace. Note: Oregon Law mandates both vaccinated and unvaccinated employees wear masks in the workplace. Additionally, employers may impose a mandate that is stricter than federal law, such as requiring vaccinations without the option of weekly COVID-19 testing,
Pay:
Covered employers are required to provide reasonable paid time off for their employees to get vaccinated, up to four hours, and any sick leave that is needed to recover from any vaccine side-effects that prevent them from working. Employees may be required to use their existing paid time off. However, if an employee does not have any paid time off available, then the employer must pay for this time. Employers may also choose to provide a separate leave bank for this purpose.
Although the ETS does not require covered employers to pay for COVID-19 testing, Oregon law conflicts with this and employers will generally have to pay any out of pocket expenses and time in some situations. Accordingly, employers may want to consider a stricter policy than what the ETS requires to avoid potentially significant expense.
Deadlines:
By December 5th, covered employers must provide paid time off for vaccines and require unvaccinated employees to wear masks. By January 4th, employers must implement weekly testing for unvaccinated workers.
Policy:
Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. Again, masks are required for Oregon employers.
Notices:
Employers must provide employees the following information in the applicable language and literacy level:
- The requirements of the ETS and workplace policies and procedures established to implement the ETS;
- The CDC document “Key Things to Know About COVID-19 Vaccines”;
- Protections against retaliation and discrimination;
- Laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Records:
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 and to anyone having written authorized consent of that employee. Employers are also required to provide information to employees upon request about the number of fully vaccinated employees and the total number of employees at a workplace.
Workplace Removal:
Covered employers must require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; keep removed employees out of the workplace until they meet criteria for returning to work.
Violations:
OSHA states that employers who fail to comply with the regulations could face penalties of nearly $14,000 per violation.
As an emergency order, the ETS preempts and replaces any state or local requirement that forbids an employer from mandating vaccination. However, legal challenges are expected.
Deadline Extended for the Executive Order Requiring Federal Contractors to Mandate the COVID-19 Vaccine
As we previously alerted, President Biden announced an Executive Order requiring all eligible contractors and subcontractors to mandate COVID-19 vaccines without the option for weekly testing, except for religious and medical exemptions. To coincide with the large employer guidance stated above, the deadline for this mandate has been extended from December 8th to January 4th.
Healthcare Vaccination Mandate
Today, the Centers for Medicare & Medicaid Services (CMS) announced the details of its requirement that healthcare workers at facilities participating in Medicare and Medicaid are fully vaccinated.
Covered employers must mandate that all eligible staff receive the first dose of the Pfizer or Moderna vaccine, or the one dose of Johnson & Johnson prior to providing any care, treatment, or services by December 5th. By January 4th, all eligible staff must be fully vaccinated. There are also exemptions based on medical or religious beliefs.
Covered Healthcare Providers:
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.
Covered Employees:
Employees working in a covered facility, both on and offsite, that participates in the Medicare and Medicaid programs, regardless of clinical responsibility or patient contact. The requirement includes all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients. This includes facility employees, licensed practitioners, students, trainees, and volunteers. Additionally, this also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements. Exception: Employees who work 100 percent remotely and who do not have any direct contact with patients and other staff.
As we previously alerted, Oregon enacted its own temporary rule requiring healthcare providers and healthcare staff in healthcare settings to be fully vaccinated by October 18th. As a healthcare provider, if you are covered under the federal mandate and not the state mandate, you must make sure all employees are fully vaccinated by January 4th.
Cascade will be developing the materials employers need to comply with the above mandates. Please don’t hesitate to reach out if you have any questions.
For more details on these mandates, please join us on November 16th for a live webinar which will review all of the requirements.