OSHA Temporary COVID-19 Standard Contains Some Surprises

On November 5, 2021, OSHA’s emergency workplace COVID-19 safety rule will be published and effective. Employers with more than 100 employees will have 30 days to comply. The emergency rule contains several mandatory requirements, few exceptions, typical recordkeeping requirements and some surprising obligations.

The rule requires employers to establish a mandatory written vaccination policy for all employees. This written policy must be produced to OSHA within 4 hours upon a request from OSHA.  All current and new employees must be vaccinated except in situations where the vaccine is medically contraindicated, where medical necessity requires a delay, where individuals have a disability or religious practice that conflict with the vaccine requirement. Otherwise, employers must establish, implement and enforce a vaccination policy. If an employee refuses to be vaccinated, OSHA’s new rule requires the employee to provide the employer with documentation of a negative COVID-19 test once a week. The employer must keep records of the employee’s vaccination status and test results.

Employers must require each employee to provide acceptable proof of vaccination, including whether they are fully or partially vaccinated. These records must be maintained by the employer as confidential medical records. An employee may provide a record of immunization, COVID-19 vaccination card, or other medical record or public health documentation that contains the type of vaccine administered, dates of administration, and the name of the health care professional or clinic administering the vaccine. If the employee does not have this documentation, the employer may accept the following attestation from an employee: “I declare 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 prosecution.”

Employers must maintain a roster of each employee’s vaccination status. Surprisingly, the employer must provide copies of the employee’s vaccination documentation to an employee or the employee’s authorized representative within 24 hours of a request. The employer must also provide within 24 hours the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace upon a request from an employee, employee representative, or OSHA.

The new rule requires employers support employees with paid time off for vaccinations and reasonable recovery times. There are requirements for testing of those employees who are not fully vaccinated and procedures for employees who report a positive COVID-19 test. The rule sets forth required notices and educational information to employees by the employer.

Finally, any work-related COVID-19 fatalities or in-patient hospitalizations must be reported to OSHA. Fatalities must be reported within 8 hours and in-patient hospitalizations must be reported within 24 hours of the employer learning about the fatality or hospitalization.

These new rules are effective and in place immediately. Any actions to challenge the constitutionality of the new rule must be filed within 60 days in the federal courts. Please contact Jonathan Good or any other Weston Hurd LLP employment attorney if you have questions about compliance or the constitutionality of the rule.

Contact Information

Jonathan A. Goodjgood@westonhurd.com – 216.687.3345