OSHA Vaccine Mandate Regulations

A summary of the regulation provides:

The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

The new Occupational Safety and Health Administration (OSHA) vaccine mandate regulations were published on November 4, 2021, at www.Regulations.gov. Go here for the specific link: https://www.regulations.gov/document/OSHA-2021-0008-0001.

A summary of the regulation provides:

The rule is an “interim final rule” and is effective starting November 5, 2021. However, public comments will be accepted up through December 6, 2021.

Use of an ETS in lieu of the normal regulatory process is due to OSHA’s belief that “[unvaccinated] employees are subject to grave danger from exposure to the COVID-19 virus” and that an ETS is necessary to protect [unvaccinated] employees from such danger. OSHA’s finding of grave danger is based on “the severe health consequences associated with exposure to the virus along with evidence demonstrating the transmissibility of the virus in the workplace and the prevalence of infections in employee populations….” See Section III.A of this regulation, headed “Grave Danger”.

How is “grave danger” defined? OSHA provides the definition within the context of legal challenges. It provides:

“… in Pertinent Legal Authority (Section II. of this preamble), “grave danger” indicates a risk that is more than “significant” (Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am., UAW v. Donovan, 590 F. Supp. 747, 755-56 (D.D.C. 1984); Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 640 n.45, 655 (1980) (stating that a rate of 1 worker in 1,000 workers suffering a given health effect constitutes a “significant” risk)). “Grave danger,” according to one court, refers to “the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health”. Fla. Peach Growers Ass'n, Inc. v. U.S. Dep't of Labor , 489 F.2d 120, 132 (5th Cir. 1974)). Fleeting effects were described as nausea, excessive salivation, perspiration, or blurred vision and were considered so minor that they often went unreported; these effects are in stark contrast with the adverse health effects of COVID-19 infections, which are formally referenced as ranging from “mild” to “critical,” (5) but which can involve significant illness, hospital stays, ICU care, death, and long-term health complications for survivors. Beyond this, however, “the determination of what constitutes a risk worthy of Agency action is a policy consideration that belongs, in the first instance, to the Agency Asbestos Info. Ass'n/N. Am. v. OSHA , 727 F.2d 415, 425 (5th Cir. 1984)).”

Notwithstanding the “grave danger” facing unvaccinated employees [who have voluntarily chosen not to be vaccinated], OSHA indicates that only 1 in 202 unvaccinated people will actually die if they contract the virus. This equates to ½ of 1% or .005%!

This ETS currently applies to all employers with a total of 100 or more employees at any time this ETS is in effect. However, the requirements of this ETS do not apply to:

Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance);
Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of a healthcare emergency temporary standard;
Employees who do not report to a workplace where other individuals, such as coworkers or customers, are present;
Employees while working from home; or
Employees who work exclusively outdoors.

The new OSHA vaccine mandate requirements are, as follows:

The employer must determine the vaccination status (full or partial) of each employee by requiring each employee to provide acceptable proof of vaccination status and must maintain a record of each employee's vaccination status.
The employer must provide:

(i) a reasonable amount of time to each employee for each of their primary vaccination series dose(s);

(ii) up to 4 hours paid time, including travel time, at the employee's regular rate of pay for this purpose; and

(iii) a reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.

For employees who are not fully vaccinated and they report to a workplace at least once every 7 days, that employee must:

(i) Be tested for COVID-19 at least once every 7 days; and

(ii) Provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result.

(iii) An employee who does not report during a period of 7 or more days to a workplace must be tested for COVID-19 within 7 days prior to returning to the workplace; and must provide documentation of that test result to the employer upon return to the workplace.

If an employee does not provide documentation of a COVID-19 test result as required, the employer must keep that employee removed from the workplace until they provide a test result. When an employee has received a positive COVID-19 test, or has been diagnosed with COVID--19, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.
Regardless of COVID-19 vaccination status or any COVID-19 testing required under paragraph (g) of the ETS, the employer must:

(i) Require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; and

(ii) Immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 and keep the employee removed until the employee:

Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
Meets the return-to-work criteria in CDC's “Isolation Guidance” (incorporated by reference, § 1910.509); or
Receives a recommendation to return to work from a licensed healthcare provider.

There are addition reporting requirements for workplace COVID-19 fatalities.

This ETS must be converted to a permanent rule by the end of six months. Therefore, in this regard, for those wishing to submit comments, OSHA specifically asks several questions that commenters may comment upon, to assist OSHA in framing its final permanent rule. The questions are –

Should the ETS cover employees with less than 100 employees?
Given that the ETS can only be issued to address “grave danger” to employees, but the final permanent rule (after 6 months of an ETS) can only be issued for a “significant risk” to employees, how should the requirements, i.e., vaccinations, testing, etc., be changed to address “significant risk”?
What scientific evidence is there that OSHA could use to fashion permanent requirements, including exceptions from vaccinations and testing, for those employees who were previously infected with the virus and are now fully recovered?
Should OSHA require a strict vaccination mandate, i.e., all employers required to implement mandatory vaccination policies as defined in this ETS) with no alternative compliance option?
What employer procedures are there to test and remove employees from the workforce after the employees tested positive for the virus?
Are there face coverings more effective for use instead of the F3502-21 standard or NIOSH Workplace Performance or Workplace Performance Plus criteria?
What has employer experience and data been in using the full suite of workplace contacts, i.e., including distancing, barriers, ventilation, and sanitation?
What employer implemented policies or information have been helpful in encouraging an employee to be vaccinated?
What employer experience or data confirms or undermines OSHA's estimates in its economic feasibility analysis or any of the assumptions or estimates used in OSHA's identification of the number of hospitalizations prevented and lives saved from its health impacts analysis?

Instructions for submission of written comments electronically are as follows:

Written comments. You may submit comments and attachments, identified by Docket No. OSHA-2021-0007, electronically at www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the online instructions for making electronic submissions.

Instructions: All submissions must include the agency's name and the docket number for this rulemaking (Docket No. OSHA-2021-0007). All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at www.regulations.gov. Therefore, OSHA cautions commenters about submitting information they do not want made available to the public, or submitting materials that contain personal information (either about themselves or others), such as Social Security Numbers and birthdates.

I hope this is of value!

Demetria Carter

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