By: Sean T. Devenney
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an “emergency temporary standard to protect workers from coronavirus.” On November 12, 2021, the US Court of Appeals for the 5th Circuit issued an opinion essentially staying the implementation of the emergency temporary standard. The Court opinion can be read, here. In response, OSHA has acknowledged the stay in actually implementing the emergency temporary standards but is still moving forward with the comment period on the rule which must be submitted by January 4, 2022 or January 19, 2022 depending on which aspect of the rule is being commented on. The current rule as proposed can be read in full, here.
It is very likely that the legal challenges in this case will rage on for several months, and the ultimate outcome will not be known for quite some time. However, given the scope of the proposed rule, it behooves employers to at least have some understanding of the proposed rule since there is some potential that the rule could be implemented and it will have wide ranging effects on the employer/employee relationship.
As proposed the rule would apply to all employers with 100 or more employees subject to certain limited exceptions. The basics of the proposed rule include:
- The employer is to determine the vaccination status of its employees (including appropriate documentation);
- The employer is to maintain vaccination records as employee medical records subject to applicable privacy rules;
- The employer is to provide paid time off (up to 4 hours) to allow an employee to get vaccinated (and any paid sick time caused by side effects from the vaccine);
- The employer must require employer’s unvaccinated regular employees to generally obtain COVID testing weekly. It is necessary to note that the employer is not currently required to pay for the tests under OSHA rules – but there could be other rules or agreements requiring the employer to pay for such tests;
- The employer must maintain records of the employees’ test results;
- The employer must prohibit unvaccinated employees that do not have the required COVID-19 test results from working;
- Regardless of vaccination status, any employee that tests positive for COVID-19 needs to be required to report the test result to the employer. The employee shall be immediately removed from the work place until the employee tests negative on a “nucleic acid amplification test”, or meets CDC guidelines for the return to work, or receives a recommendation from a licensed healthcare provider that it is OK to return to work;
- The employer must require all unvaccinated employees with limited exceptions to wear a mask indoors, and under no circumstances shall the employer prevent any employee (whether or not vaccinated) from wearing a mask if the employee chooses to do so. Likewise, an employer cannot prohibit visitors or customers from wearing a mask if they choose to do so. The employer is not required by the OSHA rules to pay for the costs of the masks, however other rules or agreement may require the employer to do so;
- The employer must also provide its employees with notice of the policies and procedures adopted by the employer to meet the requirements of the rule and to post information relating to the efficacy of COVID-19 vaccines;
- The employer must also report COVID-19 “work related” fatalities and hospitalizations to OSHA consistent with its general obligations for workplace injuries;
- The employer should be able to provide OSHA with the documentation relating to its compliance with the COVID-19 rules within very tight time frames (and for certain policies within four hours of the request).
In short, employers with more than 100 employees should at least consider how these rules might impact current processes and assign individuals in the company to keep an active eye on the progress of the rule in the event that it is formally adopted.
After all, failing to plan is planning to fail.
If you need assistance navigating the new OSHA policies, contact your DSV attorney or Sean T. Devenney at firstname.lastname@example.org.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***