OSHA Webinar for K12 Stakeholders on Newly Released Vaccine ETS

The Fifth Circuit Court has placed a temporary stay on the OSHA rule which enjoins the agency from taking any action to enforce it at this time. We will update this post with any developments.

On Friday, November 12, OSHA hosted a webinar for K12 education stakeholders on its newly released Emergency Temporary Standard (ETS) related to the vaccine mandate. Access the recording here.

As a reminder, the ETS only to public sector employers in 28 states. Check here to see whether school districts in your state will be impacted by this rule. Employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021, effective date.

If your school district is impacted, here are the highlights from the webinar:

Required Policy

OSHA’s ETS requires employers who have at least 100 employees to institute either a mandatory vaccine policy or a weekly testing and mask policy. The mandatory vaccine policy allows for some exceptions, including individuals with a medical delay necessary, medical contraindications, and those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

Policies must be in writing and communicated to employees. OSHA has sample templates for both policies (mandatory vaccines sample/ vaccination or testing sample).

Some exceptions for employees who are not covered by this rule: Employees not reporting to the workplace with other coworkers or customers, working from home, or working exclusively outdoors. If they come in sporadically, they would be covered when they come in—therefore tested within 7 days prior to entering the workplace.

Determining Vaccination Status

Employers must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is:

• The record of vaccination from a healthcare provider or pharmacy;
• A copy of the COVID-19 Vaccination Record Card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state, or tribal immunization information system; or
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
• If an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee can be accepted.

Record-Keeping/Reporting

Employers must maintain a record of each employee’s vaccination status and keep acceptable proof of vaccination for each employee, along with a roster of each employee’s vaccination status. Employers that have already determined vaccination status prior to the ETS through another form, or proof and retained records, do not have to re-determine the vaccination status of individuals whose fully vaccinated status has been previously documented. In addition, the employer must maintain a record of each test result provided by each employee.

These records and roster are considered employee medical records and must be maintained as such records. They must not be disclosed except as required or authorized by federal law. These records and roster must be maintained and preserved while this section remains in effect.

Employers must also report work-related fatalities and hospitalizations to OSHA—within 8 hours of learning of work-related fatality, and within 24 hours of work-related hospitalization.

Testing Guidelines

Employees who choose not to be vaccinated must be tested once every 7 days. Any tested approved or authorized by the FDA is allowed. Tests that are not acceptable are antibody tests and over-the-counter (OTC) tests that are administered and read by the employee. If an OTC test is proctored by telehealth practitioner or administered by employer, or observed by employer if is acceptable.

Under the ETS, employers do not have to pay the cost associated with testing. However, whether employers can require employees to pay for their own tests will depend on state law and whether testing is offered as a reasonable accommodation. Many states have laws requiring employers to pay the cost of any required medical exams or tests or expense reimbursement laws, which may be implicated.

Removal for Positive Tests

Regardless of vaccination status, employees who test positive for COVID-19 or who are diagnosed with COVID-19 must be removed from the workplace until they meet certain return-to-work criteria. The ETS does not require paid leave for employees who are removed, but acknowledges that other laws may impose such obligations.

Masking Guidelines

Subject to limited exceptions, employers are required to enforce the wearing of masks for those who are unvaccinated when indoors and when occupying a vehicle with another person for work purposes. Like testing costs, the ETS does not mandate employers to pay for face coverings required by the ETS.

See OSHA’s website for more resources including factsheets, FAQs and more.