OSHA Reveals Standard to Implement Vaccine Mandate
On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS) which implements President Biden’s vaccine-or-test requirement for private employers with 100 or more employees. Oregon has an approved OSHA state plan and must adopt rules that are “at least as effective” as federal standard. Oregon has until November 19th to inform federal OSHA of its plan and must have a rule in place no later than Dec. 5th.
The ETS is an astounding 490 pages and provides scientific justification and legal defense of the standard. However, the essential terms of the standard are not surprising. Employers with 100 or more employees must develop and enforce written safety policies that require: (1) Mandatory vaccination (with ADA and religious accommodation); or (2) Mandatory vaccination-or-test/mask.
Employers must have vaccination/testing procedures in place by December 5, 2021. Employers must determine the vaccination status of employees, obtain proof of vaccination status, and maintain a roster of employee’s vaccination status. Employees must be fully vaccinated or begin weekly testing effective January 4, 2022. If not fully vaccinated, employee must wear face covering when indoors and must be tested at least weekly (if the worker is in the workplace at least once a week). The federal Rule does not require employers to pay for testing but may be required by other laws or collective bargaining agreements. Oregon does have a rule that requires employer to pay for mandated medical certifications/verifications. It is unclear if this rule will apply to the testing requirement under the new Federal rule. I anticipate Oregon OSHA will clarify the requirements for employers to pay for the testing when it issues its state plan.
Employees must provide prompt notice of positive COVID-19 test. Employers must remove employee regardless of vaccination status and not permit return to work until they meet certain criteria: (1) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT); (2) meets the return-to-work criteria in CDC’s “Isolation Guidance;” or (3) receives a recommendation to return to work from a licensed healthcare provider.
The EST also mandates employer support for vaccination. Employers must provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
OSHA has rarely issued emergency temporary standards and the legal challenges have already begun. The argument is that OSHA’s power to implement emergency rules is limited to workplace hazards, and that there is no “grave danger.” Several states have gone on record indicating they will not adopt this new standard. However, it is likely that Oregon and Washington will adopt the standard and take effect before any legal challenges can be resolved at the federal level. Accordingly, Oregon and Washington employers are advised to start preparing their compliance plans right away. Employers failing to comply with the ETS could be fined up to $13,653 per violation.
If you have any questions regarding the new federal ETS, please do not hesitate to contact me at or 503-595-2136.
Posted by Steve Verotsky.
