The U.S. Occupational Safety and Health Administration (OSHA) will promulgate a rule for enforcing the order. Violations of the rule could result in fines of up to $14,000 per day. Indications are that the OSHA rule will be issued in two to three weeks. Once the federal rule is adopted, Oregon OSHA will adopt a rule that aligns with the federal rule within 30 days.
President Biden signed similar orders that apply to federal employees, federal contractors, workers in healthcare facilities that receive Medicare and Medicaid reimbursements, and teachers and staff in Head Start and Early Head Start programs as well as other federal education programs. Workers covered by those mandates will not have a testing alternative.
Many more details will emerge as OSHA drafts its rule. In the meantime, here are a few things for employers to keep in mind and be prepared for:
The deadline for employers to comply with the rule is still unknown. More details are expected when OSHA issues its rule in the coming weeks. In the meantime, employers are still permitted to encourage their employees to get vaccinated or implement their own vaccine mandate ahead of the federal requirements.
The rule’s testing alternative for employers with 100 or more employees will likely suffice as a reasonable accommodation for those with a disability or sincerely held religious belief that prevents them from getting vaccinated. Because there will be no testing alterative for workers in healthcare settings receiving Medicare and Medicaid reimbursements, these employers will need to engage in the interactive process for employees who request a medical or religious exception.
Employees covered by other federal mandates do not have a testing alternative. But if an employee requests an accommodation based on disability or religion, employers should evaluate whether testing is a reasonable accommodation. Employers should engage in the interactive process with their employees if they request an accommodation.
Paid Time Off
The OSHA rule that applies to employers with 100 or more employees will also require that employers provide paid time off to employees for the time it takes to get vaccinated and to recover from side effects.
Under state and federal law, employers are required to pay their non-exempt employees for the time spent receiving COVID-19 testing during the workday, and employers may also be required to pay non-exempt employees if they receive their testing on a non-work day.
Testing Availability & Costs
The OSHA rule will likely drive a surge in the demand for testing. It is not yet known whether the supply of testing can keep up. It is also not known who will shoulder the burden of the cost of testing—insurance companies, employers, or the government. Employers should note that Oregon law makes it unlawful for an employer to require an employee to pay for a required medical exam unless the exam is required pursuant to a collective bargaining agreement, state or federal statute, or city or county ordinance. Stay tuned for more information on who will be responsible for the cost of testing.
We will follow up with a separate E-Alert once the OSHA rules are available. In the meantime, employers should seek counsel as they prepare to comply with the federal requirements or if they wish to implement their own vaccination mandates.
For questions about vaccination mandates or for any other matters relating to COVID-19 in the workplace, contact Amy Angel at 503-276-2195 or email@example.com.
NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future. For past E-Alerts and other COVID-19 resources, visit our “Navigating Coronavirus in the Workplace” page here.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2021 por Barran Liebman LLP.