By Attorneys Aaron Hilligas, Ann Smisek and Elizabeth Heffernan
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing. The ETS, which takes effect immediately upon publication, puts in place various requirements for employers pertaining to vaccination and COVID-19 testing policies.
Who is Covered?
This emergency rule applies to all private and public employers with a total of 100 or more part-time and full-time employees at any time the ETS is in effect, with a few limited exceptions. These exceptions include:
1. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance)
2. Settings where any employee provides healthcare services or healthcare support services when subject to the Healthcare ETS issued in June 2021 (29 CFR 1910.502)
Even if an employer is covered under this rule, there may be some employees who will not be required to comply with either the vaccine or testing requirement. These employees include:
1. Employees of covered employers who do not report to a workplace where other individuals are present;
2. Employees of covered employers who work from home; or
3. Employees of covered employers who work exclusively outdoors.
OSHA expects that employers in nearly every sector will be covered by this ETS. When determining the number of employees, employers must include all employees across locations, regardless of vaccination status, where they perform their work or if they serve under an independent elected official or governing body. Part-time employees count towards the total, but independent contractors do not. Even if employees are exempt from the vaccine or testing requirement, they will be included in the 100 employee count.
Additionally, state and local government entities in Iowa will be covered if they meet the “100 employee” threshold because Iowa has an OSHA-approved State Plan that covers these employees.
Iowa OSHA has 30 days after publication of the emergency rule to adopt a State emergency standard that is at least as effective as the federal rule. Unless and until that time, the federal emergency temporary standards should be followed by employers. The Iowa Department of Labor, OSHA Division is the entity charged with enforcing the new regulations. But if Iowa OSHA fails to adopt an appropriate State emergency standard or enforce the new regulations, Federal OSHA may take action to ensure enforcement of the emergency standards. We advise all employers, public and private, who have at least 100 part-time and full-time employees to follow the federal emergency temporary standards until further notice.
What Is Required?
Vaccination. Covered employers must establish, implement, and enforce a written mandatory vaccination policy in the workplace. This policy must require the vaccination of all employees, including new employees as soon as practicable, except for employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) who are legally entitled to a reasonable accommodation for disability or sincerely-held religious reasons. As part of this policy, employers must provide up to 4 hours of paid time at the employee’s regular rate of pay for the employee to receive each primary vaccination dose. The employer must also provide reasonable time and paid sick leave for employees to recover from side effects of vaccination.
Testing and Masks. An employer need not establish a mandatory vaccination policy only if the employer establishes, implements, and enforces a written policy that allows any employee to:
1. Choose either to be fully vaccinated against COVID-19, or
2. Provide proof of regular testing for COVID-19 and wear a face covering.
• Employees who cannot wear a face covering because of a disability or sincerely-held religious belief may request reasonable accommodation pursuant to the applicable federal laws.
“Regular testing” under this rule means an employee who reports at least once every 7 days to work must be tested for COVID-19 at least once every 7 days and provide documentation of their test results. Face coverings must be worn indoors and when occupying a vehicle with another person for work purposes, with limited exceptions. Employers are not required to pay for any costs associated with testing or costs associated with face coverings under this rule. Rather, under the ETS, an employer can require its employees to pay for their own regular testing. Employers cannot prohibit customers, visitors, or employees from voluntarily wearing face coverings, unless wearing a facemask would create a hazard of serious injury or death.
Record Keeping. Covered employers must determine the vaccination status of each employee and require that each vaccinated employee provide “acceptable proof of vaccination status.” Acceptable proof includes:
• Record of immunization from a health care provider or pharmacy;
• Copy of their COVID-19 vaccination card;
• Copy of medical records documenting vaccination;
• Copy of immunization records from a public health, state, or tribal immunization system; or
• Copy of any other official documentation that contains the type of vaccine, dates of administration, and the name of the health care professional or clinic that administered it.
The rule also provides an option for employees who are unable to produce any form of the listed acceptable proof to attest to their vaccination, with specific requirements. Employers must maintain records of each employee’s vaccination status and proof provided as confidential employee medical records.
If an employee fails to provide documentation of COVID-19 testing results, receives a positive COVID-19 test, or is diagnosed with COVID-19, the employer must be promptly notified and then remove the employee from the workplace. The employee may return if they receive a negative test result, meets the CDC’s return to work criteria, or receives a recommendation to return from a licensed healthcare provider.
Employee Notice. Employers must inform each employee, in a language and at a literacy level the employee understands, about:
• The requirements of this rule and the employer’s policies and procedures established to implement it;
• COVID-19 vaccine information;
• Non-discrimination notices; and
• Penalties for false statements under the OSH Act.
Reporting Requirements. Employers must report to OSHA each work-related COVID-19 fatality within 8 hours of learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the hospitalization.
Employer Failure to Comply. Employers not enforcing OSHA’s ETS vaccination rule could be cited by OSHA fined up to $13,653 for each serious violation, or up to $136,532 for a willful violation.
When Does the Vaccination Rule Take Effect?
This rule takes effect immediately upon publication. The rule provides employers 30 days after the date of publication to comply with all provisions except for the testing requirement. Employers must comply with the testing requirement 60 days after the date of publication.
On October 29, 2021, the Iowa legislature passed House File 902, which states that employers who require their employees to receive a COVID-19 vaccine must waive that requirement if the employee, or their guardian, requests a waiver and submits a statement attesting that:
1. Receiving the vaccine would be “injurious to the health and well-being of the employee or an individual residing with the employee”, or
2. Receiving the vaccine would “conflict with the tenets and practices of a religion of which the employee is an adherent or member.”
This new law only requires the employee to submit a personal statement to be eligible for a waiver from vaccine requirements.
This law also states that an individual who is discharged from employment for refusing to receive a COVID-19 vaccine shall not be disqualified from unemployment benefits on account of that termination. The provisions in House File 902 became effective immediately.
On November 5th, 2021, Governor Reynolds joined ten other states and a few other parties to file suit against OSHA and President Biden, seeking to vacate the rule and grant a stay of the rule pending judicial review:
Link 1: Gov. Reynolds files lawsuit challenging Biden Administration's vaccine mandate rule | Office of the Governor of Iowa
Link 2: 2021-11-05 - OSHA Vaccine Mandate - Petition for Review.pdf (iowa.gov).
Also, on November 6th, 2021, the Fifth Circuit Court of Appeals granted an emergency stay of the new OSHA rules, halting their implementation. This stay is temporary in nature and its impact and scope are uncertain. This stay will be subject to further court review. Therefore, we recommend Iowa employers should continue to prepare to comply with the new OSHA emergency temporary standards.
We anticipate further developments on this issue and will continue to update clients with new information. In the meantime, we recommend employers take the following steps to begin preparing for the new emergency temporary standards:
(1) Draft a policy. A sample policy is available here.
(2) Prepare notices to employees that are then available to be sent when the status of the standards is more certain. Sample notices are available here.
(3) Consider asking employees to voluntarily disclose their vaccination status and provide proof of vaccination in accordance with the temporary standards and develop a system for recording/maintaining such information consistent with the standards.
Please contact a member of the Ahlers & Cooney Employment Law team for any questions or additional guidance.
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