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New OSHA Rules for Vaccination in the Workplace

New OSHA Rules for Vaccination in the Workplace

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By Nicholas Kent, Senior Vice President of Policy and Regulatory Affairs, Career Education Colleges and Universities

The contents of this update should not be considered legal advice. We recommend all institutions consult an attorney about vaccine mandates.

Executive Summary

On November 5, 2021, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) to protect employees from being infected by COVID-19. The ETS is an interim final rule that establishes workplace vaccination, vaccination verification, and face covering and testing requirements.

The ETS will expire in six months, but institutions should expect OSHA to finalize its rule in the intervening time period.

The ETS applies to private-sector employers with a total of 100 or more employees, including colleges and universities. Employers have until December 5, 2021, or January 4, 2022, to comply with the ETS, depending on the specific provision. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit stayed (paused) the ETS pending further judicial review, citing “grave statutory and constitutional issues.” The Fifth Circuit Court of Appeals initially stayed the rule; however, on December 18, 2021, the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay, allowing the rule to be implemented.

Purpose

According to OSHA, the ETS is necessary to address the “grave danger” posed by occupational exposure to COVID-19 in workplaces. Specifically, the ETS is intended to help protect unvaccinated workers from the risk of contracting COVID-19, including the more contagious variants. The ETS was prompted because vaccination rates across the country are inconsistent and have slowed significantly since earlier this year. OSHA believes a uniform response is necessary to protect workers.

Covered Employers

The ETS for vaccination and testing applies to all private-sector employers with 100 or more employees. However, it does not apply to workplaces already covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS. Healthcare and healthcare support service workers are covered under a specific Healthcare ETS.

The applicability of the ETS is based on the size of an employer, in terms of the number of employees, rather than on the type or number of workplaces. In determining the number of employees, employers must include all employees across all their U.S. locations, regardless of their vaccination status or where they work. Part-time employees count toward the total, but independent contractors do not.

The ETS exempts several categories of workers based on the characteristics of their work or workplaces. Specifically, workers who do not report to a workplace where other individuals are present or who telework from home and workers who perform their work exclusively outside.

Vaccination Is Strongly Encouraged

OSHA believes that the best method for protecting the U.S. workforce from serious health consequences of COVID-19 is that workers become fully vaccinated. Although OSHA indicates it may have the authority to mandate vaccination, it has stopped short of such a strict vaccination mandate. Instead, the ETS provides covered employers with two compliance options.

The ETS requires employers to implement a mandatory vaccination policy unless they adopt a policy in which employees regularly test for COVID-19 and wear a face-covering in most situations when they work near others.

If an employer decides to establish a mandatory policy on vaccination, it must have a written “mandatory vaccination policy.” The policy must require vaccination of all employees, including all new employees as soon as practicable, other than those employees: (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.

Unvaccinated Workers Must Be Regularly Tested for COVID-19 and Use Face Coverings

Although the ETS encourages employers to implement a mandatory vaccination program, employers may opt-out of that requirement. However, alternative measures must be taken at workplaces where the employer decides not to enforce a mandatory vaccine policy. Specifically, unvaccinated workers who report to a workplace where others are present must be tested at least once a week for COVID-19. Employees who receive a positive COVID-19 test, or a COVID-19 diagnosis, must be removed from the workplace until it is safe for the employee to return.

The ETS requires the employer to ensure that all employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except: (1) when an employee is alone in a room with floor to ceiling walls and a closed door, (2) for a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements, (3) when employees are wearing respirators or face masks, or (4) where the employer can show that the use of face coverings is infeasible or creates a greater hazard.

If employers do not establish a written mandatory vaccination policy, the employer must develop and implement a written policy allowing employees not subject to a mandatory vaccination policy to either be fully vaccinated or regularly tested for COVID-19 and wear a face covering.

Determining Employee Vaccination Status

The ETS requires employers to assess the vaccination status of each employee. Employers must require employees to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is: (1) the record of immunization from a health care provider or pharmacy, (2) a copy of the COVID-19 Vaccination Record Card, (3) a copy of medical records documenting the vaccination, (4) a copy of immunization records from a public health, state, or tribal immunization information system, or (5) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

A signed and dated employee attestation is acceptable when an employee cannot produce proof of vaccination.

The employer must maintain a record and a roster of each employee’s vaccination status. This information is subject to applicable legal requirements for confidentiality of medical information.

Information Provided to Employees

Employers must provide employees with specific information contained within the ETS to ensure they understand their rights and responsibilities. The information must be provided to each employee in a language and at a literacy level the employee understands. This means that if an employer has employees who do not speak English or are at different literacy levels, the employer must present information to ensure each employee can understand their rights and responsibilities

Employee Supports

The ETS requires all covered employers to support vaccination by providing employees with up to four hours of paid time to receive each vaccination dose and reasonable time and paid sick leave to recover from the vaccine’s side effects. Employers are required to bear the cost of the paid time off to support vaccination. However, where employees choose to remain unvaccinated, employers are not required to pay for the costs associated with regular COVID-19 testing or the use of face coverings. The ETS notes that other federal or state laws or collective bargaining requirements may require an employer bear these costs.

Federal Preemption

OSHA states the ETS preempts inconsistent state and location requirements, including requirements that ban or limit employers’ authority to require vaccination.

Effective Dates

Compliance for all provisions in the ETS is 30 days after the effective date (December 5, 2021), except with the requirement on COVID-19 testing for employees who are not fully vaccinated, which requires compliance within 60 days of the effective date (January 4, 2022).

If an employee completes the entire primary vaccination within 60 days, that employee does not have to be tested, even if they have not yet completed the two-week waiting period that is required to meet the definition of fully vaccinated. Employers must begin compliance with the testing requirements for employees who have not yet completed primary vaccination (i.e., employees who have not received any doses, employees who have received only one dose of a two-dose series) within 60 days from the date of publication in the Federal Register (January 4, 2022).

Penalties

Violations of the ETS could result in a $13,653 fine per violation.

The contents of this update should not be considered legal advice. We recommend all institutions consult an attorney about vaccine mandates.


Nicholas Kent

NICHOLAS KENT is Senior Vice President of Policy and Regulatory Affairs at Career Education Colleges and Universities. In this role, he serves as senior advisor to association leadership by providing statutory, regulatory, and policy guidance on matters relating to higher education.

Prior to his current role, Nicholas was Managing Director at Dulles Advisory Group, a higher education and strategic management consulting firm. In this position, he worked with postsecondary institutions to assist and guide them on the vastly regulated field of higher education, including advising nonprofit and proprietary organizations regarding strategic and technical issues pertaining to accreditation and the federal student financial assistance programs.

Nicholas previously held a government appointment as Director of Policy, Planning and Research at the District of Columbia Office of the State Superintendent of Education. In this position, he was primarily responsible for working with internal and external stakeholders to develop and support the final issuance of regulations, policies, and guidance materials that supported the agency’s efforts to ensure compliance with federal and local laws.

Before time in public service, Nicholas served as Vice President of Legislative and Regulatory Affairs for a private equity sponsored company. For approximately eight years, he was responsible for leading and managing regulatory operations, including accreditation and state authorization activities, for a system of 53 postsecondary institutions.

Nicholas began his career in education as a professional staff member for an accreditation agency recognized by the U.S. Secretary of Education.

Nicholas earned his bachelor’s degree in political science from West Virginia Wesleyan College and his master’s degree in higher education administration with a concentration in policy from The George Washington University. He is a current member of the Association for Education Finance and Policy and a frequent writer and speaker on topics related to higher education.



Contact Information: Nicholas Kent // Senior Vice President of Policy and Regulatory Affairs // Career Education Colleges and Universities (CECU) // 571-800-6524 // nicholas.kent@career.org // https://www.career.org/

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