NPMA weighs in on vaccine ETS releases

On Nov. 4, the U.S. Department of Labor’s (DOL’s) Occupational Health and Safety Administration (OSHA) released an emergency temporary standard (ETS) on vaccines and testing. The Centers for Medicare & Medicaid Services also released a separate ETS covering those who work or service healthcare facilities, regardless of company size. The National Pest Management Association (NPMA) staff has reviewed the rules and created a breakdown of key provisions, as they do differ.

“These rule packets are hundreds of pages, so additional context on these requirements may be provided to NPMA members within a few days,” the association said in a news release.

The following is directly taken from the NPMA’s eblast to members on the topic:

NON-HEALTHCARE FACILITIES

• When does the ETS go into effect? Those choosing the masking option are required to comply beginning Dec. 5, 2021. The ETS goes into effect fully on Jan. 4, 2022.
• Who does the ETS cover? The rule covers anyone who either holds a federal contract and/or has more than 100 employees. The 100-employee size is per company, not per location.
• What are the vaccine requirements for my company? Covered employers must create and enforce a written COVID-19 policy that either requires:
  1. All employees to be fully vaccinated effective Jan. 4, 2022, or
  2. All unvaccinated employees to submit to specific types of weekly testing and wear a mask beginning Dec. 5, 2021.
• What does fully vaccinated mean? Employees must have received either two doses of Moderna/Pfizer or one dose of Johnson & Johnson at least two weeks prior to the effective date of Jan. 4. Should an individual receive one shot of one vaccine and a second shot of a different vaccine, then the second shot must have been administered 21 days prior to Jan. 4.
• What methods of determining vaccination status are accepted? Any of the following methods may be used: the record of immunization from a healthcare provider or pharmacy; a copy of the COVID-19 Vaccination Record Card; a copy of medical records documenting the vaccination; a copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s).
• What if an individual cannot produce any of the above? In such a case, a signed and dated statement by the employee may be used that includes all of the following information: specifying their vaccination status (fully vaccinated or partially vaccinated), that they have lost and are otherwise unable to produce proof required by this section; and the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” The statement should also include to the best of the employee’s recollection the type of vaccine administered, the date(s) of administration and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s). An employee unable to unwilling to provide any of these methods of verification shall be considered unvaccinated. Any person who knowingly makes a false statement will be liable for criminal penalties.
• How should a company store the verification of vaccination status? Every company must keep a roster of all employee’s vaccination status and proof of vaccination status for each employee. This information will be considered medical records and must be maintained while this standard is in effect.
• What methods of testing are accepted? The only acceptable types of testing are one of the following: tests processed by a laboratory, proctored over-the-counter tests, point-of-care tests (those conducted in a medical facility), and tests where specimen collection and processing is either done or observed by an employer. At-home instant tests are not sufficient to meet this requirement.
• What does my company need to report to OSHA? A work-related COVID fatality must be reported to OSHA within eight hours of the employer learning of it. A work-related COVID hospitalization must be reported to OSHA within 24 hours of the employer learning of it. (It is not immediately clear how infection sources can be differentiated between work and anywhere else. The NPMA will look more closely into the supporting documents and provide an update when available.) There are exemptions:
  • Employees who have received medical guidance that a vaccine is not suitable for them personally.
  • Employees who have received medical guidance that a delay is medically advised for them personally.
  • Employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
  • Employees working exclusively outdoors where no other people are ever present.
  • Employees working exclusively from home where no other employees are ever present.
• I had COVID. Am I still required to be vaccinated or masked? Yes. Prior infection is not an exemption from either vaccination or masking/testing.
• Who pays for testing if my company decides on that option? Employers are not required to pay for testing or provide tests under this ETS; it is the employee’s responsibility to pay for their own tests. There is nothing prohibiting the employer from paying for or providing testing should they decide to offer that assistance. The only exception to this may be for pre-existing provisions in union contracts.
• I have more than 100 employees overall, but not 100 at any location. Am I covered? Yes.
• What if I live in a state that has prohibited a vaccine mandate and/or mask wearing? Does this still apply to me? Yes. OSHA standards preempt state rules, except in states that have their own OSHA-approved workplace agencies. Those state agencies (which OSHA monitors) are required to enact a rule that is at least as effective as the OSHA rule, effectively making OSHA rules the law of the land.
• What are the penalties for non-compliance? The types of violations are found here.
  • “Serious” and “other than serious” violations carry a penalty of $13,653 per violation. So, for example, if four unvaccinated employees forgot to supply testing for two weeks in a row, that would be two violations per individual for a total of $81,918.
  • “Willful” or “repeated” violations carry a fine of $136,532 per violation. This covers employers who intentionally disregard their obligations under the Act or demonstrate plain indifference to employee safety. For example, if an employer did not enforce its own policy or did not create a policy, that could cover multiple violations for each employee, all carrying the $132,532 fine per violation.
• How will OSHA monitor compliance? This will be a part of any OSHA inspection, and OSHA will also respond to any complaints from individuals who allege non-compliance of a company.
• Will this standard become permanent? OSHA has requested comments on whether to make the standard permanent. It is likely that both comments, and legal challenges will shape a permanent rule.
• Other important provisions:
  • Companies must provide paid time off for their employees to get vaccinated (up to four hours, including travel time) and paid sick leave for side effects as needed.
  • Testing for unvaccinated employees must take place at least once every seven days.
  • Employees who are unvaccinated and refuse to provide testing results at least once every seven days will be prohibited from returning to the workplace until test results are provided.
  • If an employee contracts COVID, employers cannot require testing for 90 days after their positive test or diagnosis.
  • Employers are not required to provide paid leave to those unable to work as a result of a positive COVID test.
  • Masks must be worn over nose and mouth. Employers cannot prohibit an employee, visitor, or customer from wearing a mask.
  • Employers must inform employees of these policy changes, and distribute “Key Things to Know About COVID-19 Vaccines,” available here.

HEALTHCARE FACILITIES

• When does the Healthcare ETS go into effect? This will go fully into effect on Jan. 4, 2022. However, 30 days from the formal publication in the Federal Register (not yet published at the time of writing), all covered individuals must have received at least their first shot of a two series shot (Pfizer/Moderna) or a single shot of Johnson & Johnson. This means that any unvaccinated individuals must have received their first shot by a TBD date in early December.
• Who is covered? If you service any of the following facilities, you are covered: any facility that take payments from Medicare or Medicaid, including hospitals, nursing homes, long-term care facilities, dialysis centers, ambulatory surgical centers, home health agencies, rehabilitation facilities, specialized medical providers, in-home care providers, hospices, and mental health providers. This does not directly apply to other healthcare entities, such as physician offices, that are not regulated by CMS.
• What exemptions are provided?
  • Employees who have received medical guidance that a vaccine is not suitable for them personally, who list the recognized clinical reason(s) for the contradictions.
  • Employees who have received medical guidance that a delay is medically advised who list the recognized clinical reason(s) for the contradictions..
  • Employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
• What are the vaccine requirements for my company? All employees must be fully vaccinated effective Jan. 4, 2022, and receive at least their first shot 30 days from publication of this rule.
• How will the vaccination information be collected by healthcare facilities? Specifics on this were not yet available, but it is almost certain individuals will be required to provide a proof of vaccination, similar to that which is outlined in the OSHA regulation detailed above.

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from Pest Management Professional https://www.mypmp.net/2021/11/05/npma-weighs-in-on-vaccine-ets-releases/
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