As the pandemic landscape continues to evolve for employers, earlier today, OSHA published new emergency temporary standards on employee vaccination (ETS). California employers now need to navigate the nuances of the federal standards, as well as the Cal-OSHA requirements. The ETS will be published in the Federal Register on November 5, 2021 and will become effective on December 5, 2021. The weekly testing requirements will become effective on January 5, 2022. The new ETS are quite voluminous and contain many detailed requirements. But here’s a cheat sheet on the highlights for CA employers (so YOU don’t have to read all 490 pages of the new OSHA rules):

FAQ Federal ETS Cal-OSHA ETS
Who is covered by the ETS? With some exceptions noted below, the OSHA ETS covers employers with at least 100 employees.  This includes all employees working from any location within the U.S. (including part-time and fully remote workers), but it does not include independent contractors or contingent workers provided by a staffing agency (although the staffing agency must count such workers when determining its own coverage).  For purposes of determining coverage, related entities may be regarded as a single employer if they handle safety matters as one company.

Exclusions: Federal Contractors and Subcontractors covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance; and workplaces subject to the requirements of the OSHA Healthcare ETS.

Remote employees are also exempt, but are included toward the employee threshold.

 The ETS applies to all employers, employees, and to all places of employment with the following exceptions:

Work locations where there is only one employee who does not have contact with other people.

Employees who are working from home.

Employees who are covered by the Aerosol Transmissible Diseases regulation.

Employees working from a location chosen by the employee, which is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).
What must covered employers do to comply with the ETS? Employers need to establish a mandatory vaccination policy (subject to medical or other legal accommodations) OR establish a written policy allowing employees to choose either to be fully vaccinated or to wear a face covering and provide proof of regular testing. Cal-OSHA ETS does not require mandatory vaccinations or a testing regimen, so employers covered under the federal ETS will need to adopt a compliant policy.

Local municipal laws may also require employee vaccinations in specific workplaces.

The ETS impose additional requirements and procedures such as a written COVID-19 Prevention Program, training for employees, “close contact” testing and paid exclusion from work.
How should an employer determine vaccination status? The rules require actual proof of vaccination (e.g., a copy of the vaccination card or similar evidence).  If, and only if, such evidence is unavailable, then an employee can submit a self-attestation form that must confirm their vaccination status and attest to the fact that they have lost or are otherwise unable to produce proof of vaccination.

Employers who accepted a self-attestation form prior to enactment of the ETS are exempt from the above.

Employers who knowingly accept false documentation may face criminal liability.

 Acceptable options include:

Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.

Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.

Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Accordingly, employers covered by the federal ETS are subject to more stringent requirements.
When is testing required? Unvaccinated employees must be tested at least once every seven days and provide documentation of the most recent test result no later than the 7th day following the date on which the employee last provided a test result.  Because of the specific timing that is required, OSHA suggests that employees should establish a regular testing schedule (e.g., every Saturday) to avoid any gap in testing exceeding seven days.  Note that the testing requirements are temporarily suspended for 90 days following a positive COVID-19 test or diagnosis. The ETS does not mandate weekly testing so employers who fall under the federal ETS will need to adopt those guidelines.

Cal-OSHA only requires testing for “outbreaks” and for potentially exposed employees with a close contact with the exception of asymptomatic employees who were fully vaccinated before the close contact and—for a limited period—employees who recently recovered from COVID-19 and have not developed COVID-19 symptoms since returning to work.
Who pays for the testing? The ETS do not require the employer to pay for testing. The ETS require employers to make testing available to employees at no cost. Employees must also be paid for the time spent testing.

Accordingly, CA employers should ensure payment unless the Cal-OSHA guidelines change.
When are face coverings required? Covered employers must ensure that unvaccinated employees wear a face covering when indoors and when occupying a vehicle with another person for work purposes.  There are several exceptions to this general rule, including when an employee is alone in a room – but only if the room has floor to ceiling walls and a closed door.  Also, unvaccinated employees can remove the mask for a limited time while eating or drinking and for identification purposes. The ETS require employers to provide employees who are not fully vaccinated with face coverings of at least 2 layers or more and ensure they are worn over the nose and mouth when indoors, in vehicles and when required by orders from the health department. Outdoors, no employees need to use face coverings, regardless of vaccination status, unless there is an outbreak.

Exceptions include: when an employee is alone in a room or vehicle, while eating or drinking provided employees are six feet apart or outside, employees wearing respirators, employees who cannot wear face coverings due to a medical or mental health condition or disability or who are hearing-impaired or communicating with a hearing-impaired person, or when an employee performs specific tasks which cannot be performed with a face covering. Employers must also provide face coverings to employees upon request, regardless of their vaccination status.

 

Remember, local guidelines may require face coverings to be worn regardless of vaccination status, like in Los Angeles.