By Randall Sutton, Partner – Employment Law & Litigation Practice Group
After a lengthy wait, U.S. OSHA issued emergency regulations today that answer many of the questions we have had regarding the upcoming mandate on larger employers to require vaccinations or impose weekly testing. This FAQ is intended to answer the big questions and weigh in on some of the remaining issues that still await clarification.
Keep in mind that Oregon is an OSHA “State Plan” state and therefore is not bound by the Federal OSHA regulations. That said, it is required to adopt local regulations that are at least as protective of workers. The federal OHSA regulatory deadline is January 4. It’s likely that we will hear from Oregon OSHA as to the specifics of its implementation of this mandate later this month.
Big Picture – What is Required?
Under the new rule, covered employers must either establish a Mandatory Vaccination Policy or establish an opt-out policy that allows the company’s employees (or certain work units within the company) to submit to weekly COVID-19 testing in lieu of vaccination. The regulations impose various recordkeeping requirements. Penalties for noncompliance will be stiff, at up to $13,653 per violation for serious violations and multiple times that for willful or repeated violations.
Employers who wish to do so can impose a mandatory vaccination policy on all employees, except those employees who cannot become vaccinated for medical reasons or because of the employee’s sincerely held religious beliefs.
Larger employers who do not wish to impose a mandatory vaccination policy will be required to impose weekly testing on those employees who work on-site or around others.
Who is Subject to the Rule?
The rule applies to private companies with 100 or more employees. The headcount includes all employees of the company, regardless of work location. Part-time and remote workers are included in the headcount, but employees placed by a staffing agency are not. Related corporate entities that manage safety functions as one company will be treated as one large employer for purposes of the rule. The employer’s headcount is determined as of the effective date of the rule, and the employer will remain subject to the rule even if payroll fluctuates thereafter.
The requirement to be vaccinated or test does not apply to employees of the company who always work alone with no other individuals present, who work from home, or who work exclusively outdoors.
Workers who cannot be vaccinated because of a medical impairment or because the of the worker’s sincerely held religious beliefs cannot be required to vaccinate. However, as discussed in more detail below, these workers will in most cases still be required to submit to weekly testing.
Testing
The rule requires weekly testing, which cannot be both self-administered and self-read. Over-the-counter tests must be proctored or submitted to a lab for processing. The rule allows all commonly used testing protocols, including rapid antigen testing.
The federal rule allows the employer to pass along the cost of testing to the employee. It is unclear whether Oregon will also adopt this rule. Current law in Oregon provides that it is an unlawful employment practice for any employer to require an employee, as a condition of continuation of employment, to pay the cost of furnishing a health certificate. In any event, the time spent testing should be treated as unpaid time, except where the employer requires that testing occur on company premises at a given date and time.
The rule appears to require weekly testing even if an employee cannot be vaccinated due to a disability or is claiming a religious exemption. However, the rule does provide that if “testing for COVID-19 . . . conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.” This language appears to open the door to an exception to weekly testing for an individual who has religious objections to testing itself (as opposed to becoming vaccinated).
Face Coverings
The rule provides that individuals who are not vaccinated must wear face coverings indoors and when occupying a vehicle with another person for work purposes. Although Oregon continues to require face coverings in most settings, when that requirement is eventually eliminated, it is possible that mask requirements will continue for unvaccinated workers under this rule.
There are exceptions to face covering requirements where a person is alone in an enclosed room, while eating or drinking, and where infeasible or the mask would create a safety hazard.
Policies & Recordkeeping
The rule requires that employers develop a written policy that covers any mandatory vaccination requirements and also any rights of employees to opt out and submit to testing instead.
The rule also requires creation and retention of logs indicating vaccination status and the manner in which proof of vaccination was provided. These records are considered confidential medical records but will be exempt from the usual OSHA 30 year retention requirements for medical records. The rule does not specifically require that employers keep copies of vaccination cards, although an employer is free to do so. For employers who have already verified and documented vaccination status, the rule does not require the employer to reverify.
Legal Challenges
The new rule is certain to face legal challenges from political, industry, religious and civil liberty groups. The emergency rule is based on the “grave danger” posed by COVID-19. Arguments have been made challenging OSHA’s authority to issue the rule. For example, it is questionable whether COVID-19 poses a greater danger within the workplace than outside it. In addition, the rule somewhat arbitrarily imposes the mandate on larger employers based on their perceived ability to handle the administrative burden, regardless of the nature of the workplace, particular industry regulated, safety measures already in place, and the proximity in which individuals work alongside one another.
Conclusion
There are still many unanswered questions about the new mandate, particularly as to Oregon employers. We will continue to monitor these developments and keep you informed.
Randall Sutton is a partner in the Employment Law & Litigation practice groups. Randy is also a member of the Health and Wine & Vine industry groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy at rsutton@sglaw.com at Saalfeld Griggs PC. 503.399.1070.
The contents of this publication are current as of November 4, 2021, and should not be construed as legal advice. Information in this publication may only apply in certain states. Readers should not act upon information presented in this publication without individual professional counseling. Receipt of this publication does not constitute or create an attorney-client relationship. The material in this publication may not be reproduced without the written permission of Saalfeld Griggs PC. © 2021 Saalfeld Griggs PC
