COUNTY NEWS: OSHA Publishes Guidance on COVID Vaccines and Testing Rules for Employers, Including MD Counties

On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued formal rules to require employers with 100 or more employees — including all Maryland counties — to develop, implement and enforce a COVID-19 vaccination-or-testing policy.

Counties and other “large” employers have eagerly awaited formal guidance from OSHA and DOL since the September announcement of President Biden’s plan to require large employers to mandate vaccinations and/or testing.

A National Association of Counties (NACo) blog explained what that means for counties:

The [emergency temporary standards] ETS applies to employers with 100 employees or more that are subject to the Occupational Safety and Health (OSH) Act of 1970. This includes county governments located in the 26 states with OSHA-approved state plans, which are OSHA-approved workplace safety and health programs operated by individual states or U.S. territories.

Maryland is a participant in the OSHA-approved state plan program, meaning that all 23 counties and Baltimore City must comply with OSHA’s newly released guidance, as employers with more than 100 employees.

Key takeaways for counties as employers:

  • Counties, as employees covered under Maryland’s OSHA-approved state plan, must implement vaccination policies by December 5
  • Employees must be fully vaccinated or begin regular testing by January 4, 2022
  • Under the OSHA regulations, counties (as employers) are required to provide reasonable time off to employees who receive their vaccination doses — up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of receiving each vaccination dose.
  • Note that under the regulations, counties cannot use other leave accrued by the employee, such as sick leave or vacation, as an offset. However, if an employee experiences side effects from the vaccine, counties may require the employee to use their accrued sick leave when recovering.
  • While the regulations do require counties to ensure that each employee who is not fully vaccinated undergo COVID-19 testing at least weekly, they do not specifically require counties (as employers) to pay for any costs associated with staff testing. (Counties may be required to pay for testing by other laws, regulations or collective bargaining agreements, however).

Key deadlines

  • The emergency regulations will take effect on tomorrow, November 5, when they are officially published in the Federal Register.
  • After November 5, Maryland and other states with OSHA-approved state plans have 15 days to notify OSHA of how they plan to comply with the regulations and 30 days to update their current plans. (Note that the regulations preempt state and local mandates that are less protective than the federal standard).
  • Counties as employers must also begin to implement their vaccination policy and offer paid leave to employees to receive and/or recover from the COVID-19 vaccine within 30 days of November 5.
  • All employees must be fully vaccinated or begin weekly COVID-19 testing by January 4, 2022.

Compliance and penalties

  • OSHA may fine an employer that does not comply with the regulations up to $13,653 for each violation.
  • Employers that willfully or repeatedly violate the standard can be fined up to $136,532.
  • Note that the Build Back Better Act, currently being considered by Congress, if enacted, would raise the maximum fine to $700,000.

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