U.S. DOL Issues Emergency Temporary Standard for Large Employers to Implement COVID-19 Vaccination or Testing Policy

Posted by Ben Shuey on November 11, 2021

Updated 11.29.2021 – 6th Circuit Court has issued an order requiring anyone who wants to join in OHSA’s motion to dissolve the 5th Circuit Court’s stay to file by November 30, 2021.  Responsive filings in opposition to dissolving the stay are due on December 7, and replies are due by December 10, 2021.

Updated 11.19.2021 – Breaking News – Oregon and Washington states take wait and see approach.

During his press conference on Nov. 18, Governor Inslee stated that Washington will be watching the judicial review and any state plan will be pending the outcome of the review. In addition, if the state plan is issued, it will follow the federal plan with the 100-employee threshold and testing option.

The Oregon OSHA posted the following statement on their website:

On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on Nov. 5, 2021 (ETS2). The court ordered that federal OSHA “take no steps to implement or enforce” the ETS “until further court order.”

Oregon OSHA is continuing discussions with stakeholders, and at this point, we do not anticipate adopting a rule by Dec. 4, 2021. If the stay remains in place, our timelines will be adjusted accordingly. We will continue to monitor the lawsuit and evaluate our options.

While the ETS is stayed, employers do not have to comply with its terms. It still may be prudent for credit unions to attempt to draft policies and put procedures in place to comply in case the stay is lifted.

The NWCUA’s valued partner, the law firm Farleigh Wada Witt provided a detailed legal alert which covers the compliance requirements of the ETS.

The NWCUA staff will continue to monitor the situation and updates to this bulletin on the Advocacy Blog as new changes happen.

Updated 11.17.2021 — OSHA released the following statement on its ETS webpage: On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Updated 11.16.2021 — The U.S. Sixth Circuit Court will hear the legal challenges to the OSHA large employer vaccine mandate rule. The U.S. Sixth Circuit Court represents Kentucky, Michigan, Ohio, and Tennessee. The now has the power to affirm or lift the stay that the U.S. Fifth Circuit Court imposed on Nov. 5.

Updated 11.15.2021 — On Nov. 12, the U.S. Fifth Circuit Court issued ruling confirming the stay that it granted on Nov. 5. This is only a preliminary ruling that is in effect until the court rules on the plaintiff’s motion for a preliminary injunction. If the court grants the motion for injunction, it will last until a conclusion of the case. The stay would bar OSHA from enforcing and taking any steps to implement the ETS. The December 6 and January 4 would no longer be in effect, pending further court action.

On Nov. 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) which will require covered employers to develop, implement, and enforce either a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

The Northwest Credit Union Association’s Compliance team has gathered the following information and resources for credit unions.

OSHA ETS: Vaccination and Testing

In addition to a mandatory COVID-19 vaccination policy or regular testing of unvaccinated individuals, the ETS also requires employers to:

• Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Require 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 the required criteria.
• Ensure 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).
• Ensure 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.

Key Provisions of ETS

Covered employers
The ETS applies to all employers that have a total of at least 100 employees at any time the ETS is in effect.

Employers with less than 100 employees or that were covered under other provisions such as the Safer Federal Workforce Task Force or by the health care ETS would be exempt from this ETS.

Exempt Employees
The requirements of the ETS do not apply to an employee who does not work with other employees or customers, works from home, or works exclusively outdoors.

Mandatory Policy
The ETS requires covered employers to establish, implement, and enforce a written mandatory COVID-19 vaccination policy but includes an exception for employers that instead establish, implement, and enforce a written policy that requires unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering at the workplace instead of vaccination.

Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, and keep a roster of each employee’s vaccination status. The vaccination status would not need to include records of booster doses.

Employers have various options for acquiring proof of vaccination from each employee. For example, an employer may obtain a physical copy of a vaccination record, or they may allow employees to provide a digital copy of acceptable records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the necessary vaccination information.

However, to comply, the employer must ensure they are able to maintain a record of each employee’s vaccination status. Therefore, the record maintenance requirements cannot be fulfilled by an employee merely showing the employer their vaccination status (e.g., by bringing the CDC COVID-19 vaccination card to the workplace and showing it to an employer representative or showing an employer representative a picture of the immunization records on a personal cellphone). The employer must retain either a physical or digital copy of the documentation.

An employee who does not possess their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physician’s office) to obtain a new copy or utilize their state health department’s immunization information system. In instances where an employee is unable to produce acceptable proof of vaccination a signed and dated statement by the employee will be acceptable. The employee’s statement must:

1. Attest to their vaccination status (fully vaccinated or partially vaccinated);
2. Attest that they have lost or are otherwise unable to produce proof required by the standard; and
3. Include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

An employee who attests to their vaccination status should, to the best of their recollection, include the following information in their attestation:

• 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).

Credit unions can use the sample policies that OSHA has provided in its compliance resources to help develop and implement the policy at the credit union.

Testing and Face Coverings
The ETS requires covered employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace) or within seven days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements, or other collectively negotiated agreements. Currently, Idaho, Oregon, and Washington do not require employers to pay for the testing. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.

The ETS requires covered employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes except in certain limited circumstances. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face-covering unless it creates a serious workplace hazard.

Paid Leave
Employers are also required to allow reasonable time — including up to four hours of paid time — to receive a primary vaccination dose(s) depending on which vaccine the employee is receiving. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Generally, employees may take up to two workdays of sick leave immediately following each dose if they have side effects. Employees with no sick leave must be granted up to two days of additional sick leave immediately following each dose if they do not have accrued sick leave.

Employee Notification to Employer of a Positive COVID-19 Test and Removal
Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis and will be removed immediately from work until they meet the requirements for returning to work.

Employee Notice
Covered employers must inform each employee about:

The requirements of the ETS and any policies and procedures the employer establishes to implement the ETS include:

• Any employer policies;
• The process that will be used to determine employee vaccination status;
• The time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations;
• The procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider;
• And the procedures to be used for requesting records.

Employers must provide additional information to unvaccinated employees, including information about the employer’s policies and procedures for COVID-19 testing and face coverings.

In addition, the information provided to the employees must address:

• COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines,” available here);
• The requirements which prohibit the employer from discharging or in any manner discriminating against an employee for reporting work-related injuries or illness, and Section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or because of actions that are required by, the ETS. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act (fact sheet available in English and Spanish); and
• The prohibitions of 18 U.S.C. § 1001 and of Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation (fact sheet available in English and Spanish).

Credit unions can utilize the compliance resources provided by OSHA which contain a model notice to employees.

Reporting to OSHA
The ETS requires covered employers to report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the incident. Credit unions can obtain more information about the reporting requirement here.

Work-related COVID-19 incidents are ones in which the exposure happened at work.

Availability of Records
Covered employers must make available the individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and to anyone having written authorized consent of that employee by the end of the next business day after a request.

In addition, employers are required to provide OSHA with the aggregate number of fully vaccinated employees at the workplace along with the total number of employees within 4 hours of a request from an OSHA representative.

Preemption and State Plans
The provisions of the ETS will preempt state rules to the extent that the state rules provide less employee protection than the EST. For example, the preemption would apply if a state had rules that would prohibit or limit employers from requiring vaccination, face-covering, or testing.

In addition, states with state plans will have 30 days to adopt the federal ETS or implement their own vaccination standard. A state may choose to apply at a standard that is higher than what is provided for in the federal ETS, such as lowering the covered employer threshold to those with 50 or more employees. Alaska, Oregon, Washington, and Hawaii have state plans.

State Responses to the ETS

IDAHO
Idaho has already joined a lawsuit, with at least 18 other states, against the Biden Administration’s requirement that all employees of federal contractors be vaccinated against COVID-19 by Dec. 8, which was filed in mid-October.

The Idaho State Board of Education also joined this lawsuit, as a complainant, due to the requirements for colleges and universities that have research grants or contracts from federal agencies to have their faculty vaccinated. The Governor and Legislative leaders did take action to provide colleges and universities with the ability to begin taking steps to comply with the Biden Administration’s order to avoid losing nearly $90 million in research contracts.

On Nov. 5, Governor Little and Attorney General Wasden joined Idaho into another multistate lawsuit against the Biden Administration and OSHA to overrule the emergency rule mandating that employers with more than 100 workers require COVID-19 vaccinations or weekly testing for those unvaccinated employees.

The Idaho Legislature will be reconvening the 2021 Session of the Idaho Legislature on Nov. 15 in order to attempt to pass laws also aimed at derailing the Administration’s COVID-19 requirements.

OREGON
Oregon has an approved state plan. Oregon OSHA will have to adopt rules that are “at least as effective” as the federal rules. The division will have until around Nov. 19 to inform federal OSHA how they plan to respond and will need to have a rule in place no later than Dec. 5. The COVID-19 Rulemaking Advisory Committee will be meeting today, Nov. 9, to discuss next steps and if (and how) Oregon’s rule will differ from the federal rule.

WASHINGTON
In addition to the federal requirements, Governor Inslee’s office is actively reviewing and considering some changes that would go above and beyond the federal requirements that could include a lower exemption threshold for employer size, including possibly applying it to employers with more than 50 employees instead of the federal level of 100, as well as whether or not the testing option in place of vaccination should be removed.

Washington’s official policy is still being determined, and more information will be available soon.

Effective and Mandatory Compliance Dates
The effective date of the ETS is Nov. 5, which is the date the ETS was published in the Federal Register. Although the ETS is effective immediately, employers are not required to comply with the requirements of the ETS until the compliance dates.

Except for the provisions related to COVID-19 testing for employees, the provisions of the ETS have a compliance date of Dec. 5. The testing requirements have a compliance date of Jan. 4, 2022.

Interim Final Rule and Resources
You can view the IFR from OSHA here.

In addition, OSHA has provided several resources to help covered employers implement the ETS, including:

Press Release
Webinar
Frequently asked questions
Compliance materials (includes sample policies, employee notices, and materials that are referenced)

Public Comments Due
The OSHA is requesting public comments on any aspect of the ETS and about whether this ETS should become a final rule. Comments are due by Dec. 5.

Your Credit Union’s Comments
Credit unions can use the instructions in the emergency temporary standard to submit their comments.

If you have questions about this communication, contact the NWCUA’s compliance team at 800.546.4465, or [email protected].

Posted in Advocacy on the Move, Idaho Advocacy, Oregon Advocacy, Washington Advocacy.