With Fed Vaccine Mandate On Hold, What Now?

November 23, 2021

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Source: The San Diego-Union Tribune, Dan Eaton

On Nov. 5, the U.S. Occupational Safety and Health Administration (OSHA) published nearly 500 pages of emergency temporary standards (ETS) that, among other things, would have required employers with 100 or more employees to require their employees to be fully vaccinated days into the new year. Employers covered by the ETS may, but are not required to, allow unvaccinated employees to submit to weekly COVID-19 testing and wear face coverings in the workplace.

A federal appeals court has put the ETS on hold indefinitely. OSHA consequently has suspended implementing the ETS for now. What does that mean for California employers?

Relationship between Cal-OSHA and U.S. OSHA

California is one of 22 states that has its own workplace safety agencies. Federal law requires such state agencies to adopt standards “at least as effective as” the federal emergency temporary standards within 30 days of adoption of the federal standards.

The California Occupational Safety and Health Standards Board (OSHSB) was set to do just that last Thursday on an expedited basis. The state’s existing emergency temporary standards contain no vaccine mandate or weekly testing requirement for unvaccinated employees. OSHSB intended to adopt the federal ETS through the “Horcher” process, named for the sponsoring legislator, by adopting state standards “identical to the federal standard with the exception of editorial and format differences.”

Fed mandate on hold

Not now. On Nov. 12, the New Orleans-based 5th Circuit of the U.S. Court of Appeals issued a preliminary injunction blocking the new OSHA regulations. The court ruled that the states and businesses challenging the federal rule were likely ultimately to prove that OSHA exceeded its lawful authority. That case and dozens of others have been combined and transferred to the Cincinnati-based 6th Circuit, which may decide to keep the 5th Circuit order in place or instead allow the OSHA standards to go into effect pending resolution of the legal challenges.

What that means for mandatory vaccination in the California workplace

The suspension of the new federal rules leaves the regulation of the safety of the pandemic-era California workplace where it has been for months. Nonunionized private California employers — of any size — may mandate that their employees be vaccinated, as long as employers accommodate employees with medical conditions making vaccination physically dangerous, such as a documented history of severe allergic reaction to components of the COVID-19 vaccine, or with bona fide religious objections. State regulations require health care workers to be vaccinated, subject to the same exceptions.

Other California COVID workplace regulations remain in place

Under OSHSB emergency temporary standards adopted in June, all employers generally must retain records of the vaccination status of their employees by: (1) maintaining a copy of an employee-provided document proving vaccination, such as a vaccine card; (2) viewing an employee’s vaccination documentation and keeping a record of having done so; or (3) having an employee self-attest to vaccination and maintaining a record of that self-attestation. Any such records must be kept confidential.

An employer may dispense with this documentation process only by requiring all of its onsite employees to wear a face covering. An employee who chooses not to submit proof of vaccination status must be treated as unvaccinated and required to wear a face covering indoors.

Unvaccinated employees may go unmasked in the workplace only in limited situations, such as when they are alone in a room or vehicle; eating and drinking while employees are at least six feet apart; and while performing a task that cannot be done with a face covering.

OSHSB rules also require California employers to inform their employees about the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.

While the litigation over the federal OSHA ETS proceeds, California employers should recognize their rights and obligations under existing pandemic-related California workplace regulations as they continue to be revised and under generally applicable law as it continues to evolve.

 

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