Today, the federal Occupational Safety and Health Administration (OSHA) released their draft COVID-19 vaccine emergency regulation for employers with 100 or more employees. The federal standard itself is available here (https://public-inspection.federalregister.gov/2021-23643.pdf) with the actual text of the regulation beginning on page 473 (the “federal vaccine ETS”). The White House’s press release, though it is general, also provides some helpful context: (https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/).
How does this affect my workplace in California?
California has a “state plan” under OSHA, meaning that Cal/OSHA is not bound to use the same text as federal OSHA for regulations, but must have a regulation that is at least as effective as any federal regulation in place within 30 days. Cal/OSHA staff have already expressed their intent to basically copy the text of the federal vaccine emergency regulation into a California vaccine emergency regulation with minimal changes due to the tight 30-day window for them to get a similar emergency standard into place. So the federal text, though not directly applicable to California at the moment, is a fairly clear outline of what we will soon be seeing from Cal/OSHA. We expect the Cal/OSHA Standards Board will vote on the draft vaccine emergency regulation at the November 18th meeting, or at an emergency meeting shortly thereafter, and the standard will go into effect by early December.
Who is covered?
Any employer with 100 or more employees “at any time this section is in effect” is covered by the standard unless they are already covered by the federal contractor mandate or the federal healthcare regulation. (See Section 1910.501(b)(2).)
Certain employees are exempt from coverage if they work in settings where COVID spread is less of a concern. Specifically, employees who (1) work where no coworkers or customers are present; (2) are working from home; or (3) work exclusively outdoors and not required to comply with the provisions of the federal vaccine ETS. (See Section 1910.501(b)(3).) These are similar exemptions to those in California’s present workplace emergency regulation (or “ETS”), so they shouldn’t be much of a surprise to employers. However, the complete exclusion of outdoor workers from coverage is not in California’s present workplace regulation and may be a significant change for some employers in the agricultural space.
What is required?
Generally, California employers must put into place a COVID-19 vaccination policy pursuant to the requirements of the federal vaccine ETS. Employers must also collect and maintain records showing their employees are vaccinated or are tested weekly. In addition, employers must provide limited PTO in order to allow vaccination and to recover from the effects of vaccination. (See Section 1910.510(f).)
What are the requirements around testing?
Employers are not required to pay for the unvaccinated employees’ weekly background testing under the federal ETS. However, we must note that this is somewhat of a distinction from California’s present ETS, which does require employees to be provided testing at no cost after a close contact or during outbreaks. As a result, we will need to see what Cal/OSHA puts out in their draft text regarding background testing.
Are employers required to verify vaccine status?
Yes and no. The federal regulation requires employers to “require each vaccinated employee to provide acceptable proof of vaccination status,” and lists acceptable forms of proof, such as records of immunization or a vaccine card. (See Section 1910.501(e)(2).) Employers are required to maintain a copy of the provided record and may be required to produce such records within one business day upon proper request. (See Sections 1910501.(e)(4) & 1910.501(l).)
However, the verification requirement contains some key exceptions. First, if an employee is “unable to produce acceptable proof of vaccination,” then the employee can provide a signed statement that they are vaccinated but are unable to provide proof. Second, if the employer has already acquired proof of vaccination by another means (including self-attestation, which California employers are already familiar with), then the employer does not need to re-verify. This is a critical exemption because it will save employers the work of re-verifying every employee’s status. However, it may or may not be carried over into California’s regulatory scheme, so, again, we need to watch the text that Cal/OSHA releases later this month. Notably, Cal/OSHA has recently proposed to require all employers to re-verify status in their draft permanent standard, which is anticipated to go into effect next April, and is available here – https://www.dir.ca.gov/dosh/DoshReg/covid-19-emergency-standards/COVID-19_Prevention-Regulatory-Language-Discussion-DRAFT-AF.pdf.
When does this go into effect?
The federal ETS has two operative dates: (1) most of its requirements go into effect on December 5th (including providing PTO, establishing a COVID-19 vaccination plan, etc.); and (2) the actual vaccine mandate itself goes into effect on January 4th, in order to align with the federal contractor mandate and healthcare regulation.
Importantly, we expect Cal/OSHA to attempt to match this federal timeline as closely as possible, meaning that Cal/OSHA’s vaccine emergency regulation may maintain the same compliance dates. Obviously, we won’t know for sure until that text is published later this month, but California employers should start gearing up now.
So – in summary – start preparing for compliance and keep an eye on Cal/OSHA to see what the final form of our state’s vaccine emergency regulation will look like!