Employer Alert: Stay of the Vaccine-or-Testing Mandate Has Been Lifted
January 11, 2022
Previously, the Federal Occupational Safety and Health Administration’s (“OSHA”) Vaccination, Testing, and Face Coverings Emergency Temporary Standards (“ETS”) had been stayed (a temporary order that stopped the immediate implementation of the OSHA ETS guidelines) by the 5th Circuit. After issuance of the stay, the various lawsuits challenging the ETS were consolidated and pending before the 6th Circuit. On December 17, 2021, the 6th Circuit lifted the stay. The matters are currently before the Supreme Court of the United States.
Which ETS controls: Cal/OSHA or OSHA?
Despite the uncertainty and current litigation surrounding the Federal OSHA ETS, Cal/OSHA’s newly readopted ETS will still go into effect this year. On December 16, 2021, Cal/OSHA announced that it readopted its previously issued Emergency Temporary Standards which will take effect January 14, 2022, and continue through April 14, 2022.[1]
The New Cal/OSHA Emergency Temporary Standards taking effect on January 14, 2022, include the following notable revisions:
1. Employees who are exempt from wearing a face covering due to a medical or mental health condition, or disability and cannot wear a non-restrictive alternative must physically distance at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19.
2. Employers are now required to make COVID-19 testing available during paid time and at no cost to employees who had a close contact in the workplace.[2]
3. “COVID-19 test” now includes specific instructions for workers using an at-home test with self-read results. The employer or a telehealth professional must observe the test results.[3]
4. On January 5, 2022, California Department of Public Health issued an order requiring the use of face coverings by all employees, irrespective of vaccination status, when indoors until February 15, 2022. There are some exemptions that can be found on CDPH’s website. [4]
Please note, this is NOT a comprehensive overview of the notable requirements. The Cal/OSHA ETS requirements are extensive and complex; if you need assistance with compliance, please schedule a consultation with one of our attorneys.
The OSHA Emergency Temporary Standards only apply to employers with 100 or more employees; the ETS include the following notable requirements:
1. Employer Support for Vaccination
a. Time for Vaccination:
i. Employers will have to provide up to four hours of Paid Time Off (“PTO”), including travel time, at the employee’s regular rate of pay for this purpose.
b. Time for Recovery:
i. The employer must provide a reasonable amount of time off and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee, for each dose.
2. Employees Who Are Not Fully Vaccinated
a. If an employee reports at least once every 7 days to a workplace where other individuals such as coworkers or customers are present:
i. They must be tested for COVID-19 at least once every 7 days; and
ii. Must provide proof of a negative COVID-19 test result from within the last week if they refuse to get vaccinated or to share their vaccination status.
3. Determination of Vaccination Status
a. Employers must determine the vaccination status of each employee. This includes whether the employee is fully vaccinated.
i. Some Examples of Acceptable Proof include:
1. Immunization record from healthcare provider or pharmacy
2. A copy of the COVID-19 Vaccination Record Card
Please note, this is NOT a comprehensive overview of the notable requirements. The OSHA ETS requirements are extensive and complex; if you need assistance with compliance, please schedule a consultation with one of our attorneys.
Looking forward:
Since the Federal OSHA Emergency Temporary Standards are currently in effect, California will have to either adopt the Federal ETS or alternative regulations that are at least as effective as the OSHA ETS. [5] It is important to note that California regularly implements regulations that are even more stringent than what is required at the federal level, so employers should begin treating the Federal OSHA ETS as the bare minimum of what will be required by Cal/OSHA.
However, California’s adoption of the Federal OSHA ETS is dependent on whether the mandate is blocked or upheld by the U.S. Supreme Court. McKague Rosasco LLP is closely monitoring the situation. For now, stay tuned for an update in a future article once the Supreme Court issues their ruling. If you need assistance navigating the ever-changing COVID-19 Emergency Temporary Standards, contact McKague Rosasco LLP
[1] https://www.dir.ca.gov/dosh/coronavirus/ETS.html.
[2] There are exceptions to this requirement.
[3] https://www.dir.ca.gov/dosh/dosh_publications/COVIDOnePageFS-12-16-2021.pdf.
[4] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.
[5] https://www.osha.gov/coronavirus/ets2.
