OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.  Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

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Coalition to Work on OSHA’s 2nd COVID-19 Emergency Rulemaking to Set a “Soft” Vaccine Mandate

We hate that we have to do this again, but alas, as we reported late last week, on Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.

To that end, Conn Maciel Carey LLP is organizing a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible. Continue reading

Fed OSHA’s COVID-19 ETS: Everything You Need to Know

By Conn Maciel Carey’s COVID-19 Task Force

We know that many of our friends in the healthcare industry are knee-deep analyzing Fed OSHA’s new COVID-19 Emergency Temporary Standard (“ETS”) and making adjustments to COVID-19 protocols and programs to quickly come into compliance with this onerous new regulation.  Conn Maciel Carey LLP’s COVID-19 Taskforce has carefully reviewed all 1,000+ pages of the ETS, its Preamble, and the rest of the supporting documentation, and has participated in several discussions with senior leadership at OSHA about thorny provisions of the rule, so we have a good understanding of what is required.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of all the major requirements of the ETS below.

Hazard Assessments and COVID-19 Plans

One of the first steps employers must take is to conduct a hazard assessment of your operations to determine those areas where risk of virus transmission exists, and to then develop a response plan for dealing with those risks.  The hazard assessment findings and your plans for transmission mitigation must be incorporated into a written COVID-19 Plan.  Here is a summary of the ETS requirements for conducting the hazard assessment and preparing a written plan.

29 C.F.R. Section 1910.502(c) requires all employers covered by the ETS to develop and implement a COVID-19 Plan for each workplace.  If the employer has more than 10 employees, the Plan must be written.  This summary describes the requirements associated with the COVID-19 Plan.

Before developing the Plan, employers must conduct a workplace specific hazard assessment for the purpose of identifying and understanding where potential COVID-19 hazards exist and what controls must be implemented to reduce those hazards.  Employers must inspect the entire workplace and the hazard assessment should: Continue reading

Adverse Reactions to COVID-19 Vaccines Are NOT Recordable On Your OSHA 300 Log

By Conn Maciel Carey’s COVID-19 Task Force

Our national OSHA Practice at Conn Maciel Carey has been advocating hard to OSHA about COVID-19 related recordkeeping issues.  One of those issues has been the recordability of adverse reactions to the COVID-19 vaccine.  Specifically, if we want to encourage more workers to get vaccinated, and to encourage more employers to mandate, incentivize, or encourage employees to get vaccinated, OSHA should not require employers to record adverse reactions to the vaccines as days away illnesses on their 300 Logs.

Many people have experienced something of a flu-like reaction to the COVID-19 vaccines, and often have required at least a day away from work the day after the second dose.  OSHA had previously indicated that many of these reactions would be recordable on the OSHA 300 Log, especially if the employer required or strongly encouraged the vaccine, or if the circumstances of the job made vaccination something of a de facto requirement.

In mid-April, OSHA clarified its position in a couple of FAQs about the recordability of adverse reactions to the vaccine in a couple of FAQs on its COVID-19 page.  At that time, OSHA said: Continue reading

How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated.  Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.

Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers.  However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws.  Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.

[6/1/21 UPDATE – Check out our newer article about updated EEOC vaccination guidance that touches on many of these same issues.]

Question 1: Can employers ask employees about their COVID-19 vaccination status?

Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination.  If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status.  Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether: Continue reading

Cal/OSHA Introduces Proposed Amendments to its COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, May 7th, Cal/OSHA finalized and published a proposed amended version of its COVID-19 Emergency Temporary Standard (the “ETS”), which the Cal/OSH Standards Board will consider for readoption at the Board’s upcoming May 20, 2021 meeting.  The revised sections of the ETS include a series of changes sought by the regulated community, and quite a few that our

Cal/OSHA’s Proposed Amended COVID-19 Emergency Temporary Standard Sent to the Standards Board

California Employers COVID-19 Prevention Coalition specifically advocated for, but the rule is still a bear.

It bears emphasizing that the proposed updated ETS is coming more than five months after the Board unanimously adopted the ETS, and during that span, Cal/OSHA has been busy considering potential changes, due in large part to the lack of opportunity by the regulated community to consider and comment in the rush to issue the emergency regulation back in November.  Indeed, when the ETS was first adopted, the regulated community struggled to understand and implement the regulation.  And while Cal/OSHA issued numerous FAQs in January, February and March, many questions remained unanswered.

In February, the Division convened an Advisory Committee about the ETS consisting of members from business and industry, labor and community groups, public agencies, and the health sciences to provide input on possible changes to the ETS.  As you know, Conn Maciel Carey, on behalf of the California Employers COVID-19 Prevention Coalition (the “Coalition”), participated in the three-day (February 11, 12 and 16) Advisory Committee meetings.  On March 2, the Coalition submitted written comments to the Chief of the Division addressing a variety of concerns and suggesting, among other recommendations, that the Division:

  • Clarify the scope of the ETS;
  • Clarify various requirements under the ETS to be consistent with guidance the Division has provided in its FAQs;
  • Create more flexibility in the standard to account for the vastly different operations covered by the ETS;
  • Address the evolving science and public health guidance on COVID-19 and the vaccines; and
  • Clarify and align notice requirements under the ETS with other California requirements.

The good news is, the agency Continue reading

Cal/OSHA’s COVID-19 Emergency Temporary Standard and Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated workers continues to rise, and despite guidance from the CDC lifting certain restrictions against fully vaccinated individuals, Cal/OSHA’s current official position, as reflected in its COVID-19 ETS FAQs, is that “[f]or now, all prevention measures must continue to be implemented” for vaccinated persons.  The same set of FAQs, however, also informs us that “[t]he impact of vaccines will likely be addressed in a future revision to the ETS.”  See Cal/OSHA COVID-19 ETS FAQs “Vaccines” FAQ #1.

Following the February 11, 12, and 16 Cal/OSHA COVID-19 ETS Advisory Committee meetings, in which CMC participated on behalf of our California Employers COVID-19 Prevention Coalition, Deputy Chief of Cal/OSHA Research and Standards shared an updated version of a “Discussion Draft” of the ETS that reflects changes under consideration by the agency.  The issue of how vaccinated employees should be treated under the ETS was a major topic of discussion during the Advisory Committee meetings, and potential changes to the ETS around that are reflected in notes in the Discussion Draft.

While the notes are not necessarily proposed amended regulatory text (rather, they largely incorporate committee members’ feedback ), reading the tea leaves from the Advisory Committee meetings, it is clear that Cal/OSHA Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available. 

This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.

Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.

As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.

In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). Continue reading