Reasonable Accommodations for Unvaccinated Employees
November 6, 2021 by Lincoln Derr
Delving Deeper into Employer Requirements Under ETS & Reasonable Accommodations for Unvaccinated Employees
OSHA’s newly implemented ETS program imposes delineated requirements for employers to comply with under its standards. An effective compliance plan for employers will be vital to ensuring successful implementation and enforcement of ETS’ standards.
As covered employers consider ETS requirements, here are key details of the key requirements relevant to your analysis in advance of development of your company-specific compliance plan:
Employers are required to inform employees of their policies and procedures established to comply with the ETS, the CDC guidance related to COVID-19 (“Key Things to Know About COVID-19 Vaccines”), OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries and OSHA’s whistleblower protections and the criminal penalties associated with knowingly supplying false statements or documentation.
Mandatory Vaccination or Test Approach
As a general proposition, the ETS requires covered employers to roll out either: (1) a mandatory full vaccination policy (which may not offer the alternative for testing) or (2) a policy that requires full vaccination or regular COVID-19 testing coupled with a face-covering policy. The policy must be written and must be provided to OSHA within four business hours if formally requested.
Unvaccinated employees electing testing must wear their face masks when indoors unless they are alone in a room with floor to ceiling walls and a closed door or for a limited time while eating or drinking or for identification purposes in compliance with safety and security requirements.
Absent undue hardship, employers establishing mandatory vaccination approaches must ensure employees are provided reasonable accommodations under the Americans with Disabilities Act for employees who are entitled to such an accommodation based on a disability or under Title VII of the Civil Rights Act related to a sincerely held religious belief or practice if the employee cannot be vaccinated or wear a face covering. Employers may require customers and workplace visitors to wear face coverings.
Vaccination Status Determinations and Attestations
The following types of acceptable proof of vaccination status may be accepted as follows: the record of immunization from a health care provider or pharmacy; copy of the COVID-19 Vaccination Record Card; copy of medical records documenting the vaccination; 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: (1) attesting to their vaccination status (fully vaccinated or partially vaccinated); (2) attesting that they have lost and are otherwise unable to produce proof required by this section; and (3) which includes the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
Employers should ensure employees seeking to attest to their vaccination status include the following information, to the best of their recollection:
- 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).
Employees not able to provide one of the acceptable forms of proof of vaccination status should be treated as not fully vaccinated.
It is the employer’s responsibility to maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination status. Covered employers must also maintain a roster of each employee’s vaccination status. All employees, regardless of vaccination status, should be included on the roster. These records and roster are considered medical records and should be maintained accordingly. Any employer who ascertained employee vaccination status prior to November 5 through another form of attestation or proof and retained records may be exempt from duplicative efforts.
Paid Time Off for Vaccination and Side Effects
Covered employers are required to support COVID-19 vaccination by providing reasonable paid time off for each employee to obtain their vaccination dose(s). Actual working time spent obtaining the vaccination up to four hours, including travel time, must be paid by the employer for each dose of the vaccine. The four hours of paid working time that employers must provide for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. Employers are not required to pay employees who obtain their vaccination doses outside of working hours.
Employers may require employees to use paid sick time or other forms of paid leave for reasonable time to recover from side effects experienced in connection with each vaccination dose. However, employers cannot require employees “to go into the negative” if the employee does not have paid time off available.
COVID-19 Testing Requirements and Associated Costs
Unvaccinated employees must receive testing for COVID-19 at least once every seven days if they report at least once every seven days to a workplace where other individuals are present. Employees who telework or do not regularly report to a workplace at least every seven days must be tested within seven days prior to returning to the workplace. The ETS does not require employers to pay for any costs associated with testing but, employers should review other federal, state, local laws, regulations, or collective bargaining agreements which may impose such an obligation.
Employees who fail to provide test results must be kept out of the workplace. An exception exists for employees who have received a positive COVID-19 test or have been diagnosed with COVID-19 by a licensed health care provider. In those situations, an employee may be relieved of testing requirements for up to 90 days after the date of the positive test or diagnosis. Testing records are considered employee medical records and must be maintained accordingly.
Under the ETS, the COVID-19 test must be: cleared, approved, or authorized, including Emergency Use Authorization, by the FDA to detect current infection; administered in accordance with the authorized instructions; and not both self-administered and self-read, unless observed by the employer or an authorized telehealth provider.
Employees are required to promptly notify employers if they receive a positive COVID-19 test result or are diagnosed with COVID-19 by a licensed health care provider. Upon notification, the employer must immediately remove the employee from the workplace until the employee receives a negative result from a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test, meets the return-to-work criteria outlined in the CDC’s Isolation Guidance or received a recommendation to return to work from a licensed health care provider.
Employers are not required to provide paid leave for workplace removal as a result of a positive COVID-19 test or diagnosis; however, OSHA acknowledges that other laws may impose such obligations on employers.
OSHA Reporting. Employers must report each work-related COVID-19 fatality within eight hours of the employer learning about it. In addition, each work-related COVID-19 in-patient hospitalization should be reported within 24 hours of the employer learning about the hospitalization.
Enforcement and Possible Penalties
Enforcement will largely fall to employers themselves. It is anticipated that OSHA inspectors will respond to employee complaints of non-compliance and will add COVID-related inspection protocols when they are already on-site for inspections. Fines for OSHA violations can range from $13,653 per violation to up to ten times that for willful or repeated violations.
Consider this Lincoln Derr article related to Compliance Plans and Timing of Implementation to assist you as you launch your implementation approach to the above requirements.
Lincoln Derr will continue to provide information and counsel related to notable developments. If you have any questions about this ETS or need assistance putting your compliance plan into place, please contact Gwendolyn W. Lewis.