On November 4, 2021, the Occupational Health and Safety Administration (OSHA) promulgated a new regulation intended to increase COVID-19 vaccination rates. President Biden previewed this regulation in September 2021 when he announced a six-part COVID-19 Action Plan to combat the spread of the communicable disease.
Note: On November 6, the Fifth Circuit Court of Appeals granted an emergency stay prohibiting enforcement of the OSHA regulation on a nation-wide basis. The federal government will provide the Court an expedited reply to the plaintiff’s motion for a permanent injunction before the Court determines whether the regulation passes constitutional and statutory muster. We do not know how long the Court will take to lift the stay or to issue a permanent injunction. As a result, we are providing this information so that clients can consider the regulation before it takes effect.
Despite the ongoing legal proceedings, this bulletin will review the requirements in the newly issued federal regulation, so employers understand their legal obligations and can modify policies and practices in order to ensure their compliance if and when the regulations become operative.
OSHA Regulations Requiring Vaccination/Testing and Paid Vaccination Leave
The federal OSHA regulation[1] applies to employers under OSHA jurisdiction that employ 100 or more employees.[2] However, the federal OSHA regulation does not apply to employers in California due to state law preempting the application of the federal safety standards.[3]
In order to maintain the state’s preemption authority, the California Occupational Safety and Health Standards Board (OSHSB) will need to adopt a comparable standard within 30 days of the promulgation of the federal OSHA regulation.[4] The California Department of Industrial Relations (DIR), which oversees Cal/OSHA, has indicated that OSHSB will indeed adopt such a comparable standard within 30 days of November 4, 2021.[5] The impact of the stay on the regulation may cause this date to be pushed back while the question of a permanent injunction is evaluated.
Because of the potential of these forthcoming regulatory requirements in California, it would be prudent for employers to familiarize themselves with the Federal regulations, so that they may proactively modify their policies and practices and have them ready for when California adopts similar standards that will apply to employers in the state.
The requirements discussed below are those provided for in the Federal OSHA regulation. Although it is likely that Cal/OSHA will treat these issues similarly, the OSHSB has not published draft regulations and, when they do, the regulations may differ from the federal regulations. Liebert Cassidy Whitmore attorneys will be monitoring these developments and will provide updates when OSHSB adopts regulations that will apply to California employers.
Federal Vaccination or Testing Requirement for Large Employers
The principle requirement under the federal OSHA regulation is that employers must ensure that their employees are either fully vaccinated or provide negative COVID-19 test results on a weekly basis by January 4, 2022.
This will require that employers who do not already have mandatory vaccination or vaccination/testing requirements in place adopt a policy requiring either vaccination or testing[6] as well as a way of determining employee vaccination status.[7] Employers with unionized workforces will need to bargain the effects of such a policy, but not the decision to require that their employees are either fully vaccinated or provide negative COVID-19 test results on a weekly basis, as it is being mandated by the federal government.
The OSHA regulation places the burden of receiving weekly COVID-19 tests on the unvaccinated employee, not their employer. If the OSHSB adopts comparable language to that provided in the federal OSHA regulation, California employers would not need to provide testing to its unvaccinated employees or pay for the cost of such tests. If OSHSB does not adopt such language, many California employers can avail themselves of the testing services offered by the California Department of Public Health’s (CDPH) COVID-19 Testing Task Force.
Vaccination Leave
A secondary requirement of the OSHA regulation relates to the provision of paid leave for unvaccinated or partially vaccinated employees to become fully vaccinated and to recover from any adverse side effects of vaccination.
The regulation requires that employers provide employees who are not vaccinated against COVID-19 four (4) hours of paid time leave during work hours[8] to receive each “primary vaccination dose.”[9]
The regulation further requires that employers provide employees a reasonable amount of time and paid sick leave to recover from such vaccination if an employee experiences an adverse side effect from the vaccination.[10] While the regulation does not provide for an amount of time that is “reasonable” to recover from any side effects, OSHA provides that it would consider an employer who provides two (2) days of leave to be in compliance with the requirement.[11]
Anticipating OSHSB adoption of a regulation that will be “at least as effective,” employers should develop policies or modify existing policies that provide at least as much paid leave as is provided under the OSHA regulation.
Conclusion
In advance of OSHSB action on a comparable vaccination/testing requirement, employers may elect to develop or modify their policies and practices in order to ensure compliance with these and forthcoming state regulations, recognizing that there may be some differences in the regulations.
Liebert Cassidy Whitmore has developed template vaccination/testing policies that may be revised to comply with the regulations. Liebert Cassidy Whitmore attorneys are prepared to assist clients with this undertaking.
Further, Liebert Cassidy Whitmore attorneys are monitoring developments at OSHSB and will provide an update when OSHSB adopts regulations that will apply to employers in the state.
[1] The long-form of the regulation is the “COVID-19 Vaccination and Testing Emergency Temporary Standard.”
[2] See OSHA “COVID-19 Vaccination and Testing Emergency Temporary Standard,” Section VI.B., pp. 333-354. California employers should note that, while the state would be obligated to cover employers with 100 or more employees in order to maintain the California’s OSHA-approved state plan, the California Occupational Safety and Health Standards Board (OSHSB) could adopt a safety standard that applies to employers with fewer employees.
[3] California employers are not subject to OSHA jurisdiction because California has adopted an “OSHA-approved state plan” that is “at least as effective” as the federal standard. (See 29 U.S.C. § 667; 29 C.F.R. § 1953.5(b); p. 315.)
[4] See Department of Industrial Relations (DIR), “COVID-19 Emergency Temporary Standards Frequently Asked Questions,” Vaccines, Question 9, https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html
[5] Pursuant to 29 CFR § 1953.5(b)(2), California has 15 days from November 4, 2021 to advise Federal OSHA of whether California will adopt regulations that are at least as effective as the Federal regulations.
[6] See OSHA “COVID-19 Vaccination and Testing Emergency Temporary Standard,” Section VI.D., pp. 366-373.
[7] See OSHA “COVID-19 Vaccination and Testing Emergency Temporary Standard,” Section VI.E., pp. 373-383.
[8] See OSHA “COVID-19 Vaccination and Testing Emergency Temporary Standard,” Section VI.F., pp. 383-384, 388.
[9] OSHA provides that “primary vaccination doses” are part of a “primary vaccination series” and would therefore not include secondary booster shots that fully vaccinated individuals may elect to receive. (See OSHA “COVID-19 Vaccination and Testing Emergency Temporary Standard,” Section VI.F., p. 384.)
[10] Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.
[11] See OSHA “COVID-19 Vaccination and Testing Emergency Temporary Standard,” Section VI.F., p. 392.
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.