The Occupational and Safety and Health Administration (OSHA) released its emergency temporary standard concerning vaccination requirements for employers with at least 100 employees.

On November 12^th, the United States Court for the Fifth Circuit issued a stay preventing implementation of the emergency temporary standard pending further judicial review. Future posts will provide additional details on the Fifth Circuit’s decision as well as other COVID related employment litigation. The Centers for Medicare and Medicaid Services (CMS) issued an interim final rule concerning vaccinations for health care workers and the deadline date for the employees of federal contractors to be vaccinated was extended to January 4, 2022, to align it with the OSHA standard and the CMS interim final rule. The EEOC has issued guidance for employers who have employees seeking religious accommodations so that they do not have to be vaccinated for COVID-19 due to sincerely held religious beliefs.

OSHA Issues Vaccine Emergency Temporary Standard - The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) that became effective on November 5, 2021 and requires covered employers with at least 100 employees either to develop, implement, or enforce a mandatory COVID-19 vaccination policy or require employees who are not vaccinated to undergo regular COVID-19 testing and wear face masks while at work. Employers need to comply with the ETS by January 4, 2022. Mandatory vaccination policy is the preferred, although not required compliance option. According to OSHA, “The nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.” OSHA believes that the grave danger from COVID-19 is the biggest threat to employees in the history of OSHA.

Employers must support vaccination by providing employees with reasonable time define to include up to four hours of paid time to receive each vaccination dose and reasonable paid sick leave to recover from any vaccine side effects. OSHA stated that 2 days of sick leave per vaccine dose is reasonable. The paid time to receive vaccination doses cannot be deducted from accrued sick leave. Those employers with paid time off (PTO) programs can require employees to use this time to recover from vaccine side effects. If employers provide multiple leave types, only sick leave can be used when recovering from vaccine side effects. 

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

OSHA detailed several other actions that the ETS requires employers to do including:

• Determining the vaccination status of each employee, obtaining acceptable proof of vaccination status from vaccinated employees, and maintaining records and a roster of each employee’s vaccination status.
• Requiring employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.

• Ensuring each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
• Ensuring that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Employers have 30 days after the November 5^th publication of the ETS to establish a vaccination policy. Employers are required to provide employees with notice of the ETS requirements. Employers must retain a record of each test result of those employees who are not vaccinated, and they are to be treated as employee medical records.

Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick stated, “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.” OSHA is providing compliance assistance for employers that includes a webinar, frequently asked questions and other compliance materials. Multiple lawsuits are expected to be filed challenging OSHA’s ETS.

CMS Issues Rule on Vaccinations for Healthcare Workers – The Centers for Medicare and Medicaid Services (CMS) has issued an interim final rule requiring health care workers at Medicare and Medicaid participating facilities to be fully vaccinated in order to continue their participation. The rule would apply to the following categories of facilities that participate in Medicare and Medicaid: residential care facilities, acute care settings, outpatient clinical care and services, and home-based care. The vaccination process needs to begin by December 5, 2021, and all required doses must be received by January 4, 2022. CMS will accept comments on the interim final rule by January 4, 2022.

Federal Contractor Vaccine Deadline Date Extended – The Biden Administration announced that it was delaying the deadline for federal contractors to be fully vaccinated from December 8, 2021, to January 4, 2022. This decision aligns the deadline with the new OSHA rules and those issued by the Center for Medicare for healthcare workers.

EEOC Issues Technical Guidance on Vaccine Religious Exemption Requests – The Equal Employment Opportunity Commission (EEOC) issued technical guidance as to how employers should handle employees who are seeking religious accommodations from requirements that they be vaccinated for COVID-19.  Section L of the technical guidance addresses this issue and states that employees must inform their employers if they want an exception to a vaccination requirement due to a conflict with their “sincerely held religious beliefs, practices, or observances.” The EEOC recommends that employers provide employees with information about how to request a religious accommodation.

According to the EEOC, employers should assume that religious accommodation requests are based on sincerely held religious beliefs. Employers can make a limited factual inquiry and seek additional information in support of the request. Title VII of the Civil Rights Act of 1964 includes nontraditional religious beliefs that employers may not be aware of. However, the EEOC states that “objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as religious beliefs under Title VII.”   

Employers can deny the requested religious accommodation if they can show that it would create an undue hardship. The requests need to be considered on a case-by-case basis and the EEOC believes the employer needs to show either the cost or the disruption the accommodation would create. Common considerations cited by the EEOC would include whether the employee requesting the accommodation to a COVID-19 vaccination requirement “works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).” Employers also can consider the number of employees seeking similar accommodations and the total cost or burden that would result from granting the accommodations.

Where multiple accommodations are available, the employer can choose which accommodation to offer, although the preference of the employee should be considered. If a proposed accommodation is denied, the employer should tell the employee why it’s being denied.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at [email protected].