Update: OSHA Emergency Temporary Standard on COVID-19 Vaccine

The OSHA Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to require employees to either obtain a COVID-19 vaccination or undergo weekly COVID-19 testing has been placed on OSHA’s website, and is scheduled for publication in the Federal Register on November 5, 2021 (which will be the ETS’ effective date). This Client Alert is intended to serve as an initial primer about the key points of the ETS.

The determination of whether the employer has at least 100 employees is initially made as of November 5, 2021. If an employer has fewer than 100 employees on that date, the ETS would not apply to that employer – but if that employer subsequently hits the 100-employee threshold for coverage, the employer would then be required to comply with the ETS. The determination of whether the employer has 100 employees is made on an enterprise level – there is not a separate calculation for individual facilities. Part-time employees should be included in the calculation.
The ETS requires an employer to take the following steps:

  • The employer must establish, implement and enforce a written mandatory vaccination policy – UNLESS the employer establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 in accordance with paragraph (g) of this section and wear a face covering as required by the ETS. Employers must comply with this section of the ETS by December 5, 2021.
  • The employer must determine the vaccination status of each employee by requiring each vaccinated employee to provide acceptable proof of vaccination status. Acceptable proof of vaccination status includes:
    • Record of immunization from a health care provider or pharmacy;
    • A copy of the COVID-19 Vaccination Record Card;
    • A copy of medical records documenting 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 health care professional(s) or clinic site(s) administering the vaccine(s).

In some cases where an employee is unable to provide proof of vaccination, an employer may be able to accept a sworn statement from the employee attesting to their vaccination status. If an employee does not provide proof of vaccination, the employer must treat the employee as being unvaccinated. Proof of vaccination must be maintained as a confidential medical record. Employers must comply with this section of the ETS by December 5, 2021.

Employers must provide paid leave for vaccination and recovery from potential vaccine side effects. Employers must provide up to 4 hours of paid time for vaccination (including travel), and “reasonable time and paid sick leave” to recover from side effects experienced following any primary vaccination dose. The ETS does not define “reasonable time and paid sick leave”, but FAQs that accompany the regulations indicate that that OSHA “presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.” Employers must comply with this section of the ETS by December 5, 2021.

  • Employers must ensure that any employee who is not fully vaccinated undergoes regular COVID-19 testing. The specific testing requirements are as follows:
    • An employee who reports at least once every 7 days to a work location where other individuals are present must be tested for COVID-19 at least once every 7 days and provide the most recent results to the employer at least once every 7 days.
    • An employee who does not report to a work location where other individuals are present during a period of 7 or more days must be tested for COVID-19 within 7 days prior to returning to the workplace, and must provide documentation of that test to the employer.
    • If an employee receives a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer may not require the employee to undergo testing during the 90 day period following their test or diagnosis.

If an employee does not provide proof of testing as required, the employer cannot allow the employee into the workplace until the required proof of testing is presented. Testing records must be maintained as a confidential medical record. Employers must comply with this section of the ETS by January 4, 2022.

Although the ETS states that employers are not required to pay for the costs of required COVID-19 testing, employers may be required to bear the cost of testing under state law or other legal provisions. Employers should consult with employment counsel prior to determining who will bear the cost of testing.

  • Employers must require employees to promptly notify the employer of positive COVID-19 test results, and ensure employees who test positive are removed from the workplace in compliance with CDC guidelines. Employers must comply with this section of the ETS by December 5, 2021.
  • The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes. There are exceptions to this rule in the following circumstances:
    • When an employee is alone in a room with floor to ceiling walls and a closed door;
    • For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
    • When the employee is wearing a respirator or facemask;
    • Where the employer can show that use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this requirement (for example, where wearing a face covering would cause a greater safety hazard).

The employer must ensure that any face covering worn covers the nose and mouth, and ensure that coverings are replaced when they become wet, soiled or damaged. Employers must comply with this section of the ETS by December 5, 2021.

  • Employers must provide each employee, in a language and at a literacy level the employee understands, information about:
    • The requirements of the ETS;
    • The CDC publication “Key Things to Know About COVID-19 Vaccines”, available online at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html; and
    • Information about federal regulations prohibiting retaliation for reporting workplace injuries or illnesses and penalties for knowingly supplying false statements or documentation.

Employers must comply with this section of the ETS by December 5, 2021.

  • Employers must report COVID-19 fatalities and hospitalizations to OSHA in accordance with OSHA reporting requirements. OSHA has prepared a fact sheet to assist with these requirements, available online at: https://www.osha.gov/sites/default/files/publications/OSHA4129.pdf.
  • By the end of the next business day following a request, the employer must make available for examination and copying the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and their designated representatives. Employers must comply with this section of the ETS by December 5, 2021.

Additional information about the ETS is available on OSHA’s website about the following link: https://www.osha.gov/coronavirus/ets2. Other federal agencies are publishing additional COVID-19-related requirements today and tomorrow; additional guidance on those measures will be forthcoming.

We expect that legal challenges to the ETS will be filed quickly by multiple governmental and private organizations. It is possible that these challenges may delay or prevent the implementation of at least some aspects of the ETS.

As additional information about the ETS becomes available, our office will provide you with updated information and guidance. If you have any questions about OSHA’s new Rule or other workplace safety issues, please call our office. Thank you.

This Client Alert provides a general overview of new legal developments. It is not intended to provide legal advice. If you have questions or would like more information about how these developments may affect your business, please contact us at (570) 341-8800.

Geisinger Offering COVID-19 Vaccines for Ages 5 to 11

Geisinger is ready to provide COVID-19 vaccines to those ages 5 to 11 years old beginning November 6 as access to the vaccine has again expanded following the latest guidance from the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA).

Appointments at Geisinger for COVID-19 vaccines for ages 5 to 11 years old are now available and can be made through MyGeisinger or by calling 570-284-3657. Vaccine appointments will be available at the following locations beginning Saturday, Nov. 6:

  • Geisinger Health Plan Building near Danville
  • Geisinger CenterPoint in Jenkins Township

Additional locations will begin providing vaccines for this age group beginning:

All vaccine locations will be staffed by pediatric care teams, including pediatric nurses and pediatricians. The locations are designed to be as child friendly as possible, with activities available like coloring sheets, stickers and similar items. Saturday appointments are available to accommodate family schedules.

“We know pediatricians and primary care providers are trusted sources of information on vaccines for parents, and we encourage and want parents and guardians to connect with their pediatrician or primary care doctor to ask any vaccine questions,” said Stacey Cummings, M.D., vice chair of Geisinger’s outpatient pediatric services. “Our pediatric team is ready to help families understand the facts behind the vaccine and how to coordinate the COVID-19 vaccine with other age-appropriate vaccines kids need.”

Parents and guardians are reminded that the COVID-19 vaccine is a two-dose series, scheduled three weeks apart, so keep that in mind when scheduling a child’s first dose. All vaccines for this age group are Pfizer BioNTech and will be a 10-microgram dose, which is one-third of the dose given to those 12 and older. There is also a 15-minute observation period following the vaccine administration.

An appointment is required for each child, and we ask that only one parent or guardian accompany a child for an appointment.

For more information about the COVID-19 vaccine, visit Geisinger.org/COVIDvax. As a reminder, masks must be worn by everyone in all Geisinger buildings and facilities.

The Wright Center Accepting COVID-19 Vaccination Appointments for Children Ages 5-11

The Wright Center for Community Health began scheduling and administering kid-sized doses of Pfizer-BioNTech’s COVID-19 vaccine for children ages 5-11 on Wednesday, Nov. 3at four regional primary care practices in Lackawanna and Luzerne counties after the federal Centers for Disease Control and Prevention (CDC) recommended the vaccines for the pediatric age group.

The unanimous decision by the CDC on Nov. 2 enables this new age group to receive 10-micrograms of the Pfizer vaccine – a third of the amount given to teens and adults. With parental consent, eligible children will receive two shots, three weeks apart. The Food and Drug Administration gave emergency use authorization of the vaccine on Oct. 29.

“Approval of the pediatric vaccine by the CDC is an important development as we work together to end the global pandemic through vaccinations, masking and social distancing,” said Dr. Jignesh Y. Sheth, chief medical officer and senior vice president at The Wright Center for Community Health. “The vaccine will offer a high level of protection for children ages 5-11 and slow the spread of the virus among others in our community, especially during the upcoming holiday season. It is also another step closer to normalcy for society and helping our school-aged children to remain in school for in-person learning.”

Due to the CDC’s recommendation, which was also fully endorsed by the American Academy of Pediatricians, about 28 million children in the new age group will be eligible to receive a vaccination. The CDC recommended vaccinations for children, ages 12-15, in May.

“We will continue to encourage all Pennsylvanians to get their COVID-19 vaccine, and we are very excited that we can now include children ages 5 and over in that effort,” Pennsylvania Acting Secretary of Health Alison Beam said in a state Department of Health press release. “To fellow parents I say: If you have a child between 5 and 11, get them vaccinated and give your child the power to safely learn, play and be a kid.”

Appointments to receive the pediatric vaccine may be made at the following Wright Center for Community Health clinics: Scranton Practice, 501 S. Washington Ave.; Mid Valley Practice, 5 S. Washington Ave., Jermyn; South Franklin Street Practice, 335 S. Franklin St., Wilkes-Barre, and West Scranton Intermediate School-Based Health, 1401 Fellows St., Scranton. To make an appointment, visit TheWrightCenter.org or call 570-230-0019.

The CDC approved third-dose boosters of Moderna’s COVID-19 vaccine on Oct. 22 for certain age groups. The Wright Center for Community Health has been administering third doses and booster shots of the Pfizer and Moderna vaccines to eligible age groups since Oct. 22. People should talk to their health care provider about their medical condition and whether or not getting an additional dose is appropriate for them.

Free, Confidential Memory Screening Day at Marywood University

As part of the Alzheimer’s Foundation of America’s (AFA) National Memory Screening Program, Marywood University in Scranton will offer free, confidential memory screenings on November 9. Screenings will be held from 9 a.m. to 7 p.m. at the Psychological Services Center.

According to the event organizer, Dr. Brooke Cannon, professor of psychology and clinical neuropsychologist, “Annual memory screenings, like regular physical exams, allow for identification of potential cognitive problems and monitoring of already existing impairment.”

Trained and supervised by Dr. Cannon, graduate student members of Marywood’s Association of Neuropsychology Students in Training will administer the memory screenings and provide educational materials about memory concerns, brain health, and caregiving. The face-to-face screenings consist of a series of questions and tasks, taking approximately 10 minutes.

AFA suggests memory screenings for anyone concerned about memory loss or experiencing warning signs of dementia; whose family and friends have noticed changes in them; who believe they are at risk due to a family history of dementia; or who want to see how their memory is now and for future comparisons. Warning signs of Alzheimer’s disease include forgetting people’s names and events, asking repetitive questions, loss of verbal or written skills, confusion and personality changes.

Screeners emphasize that results are not a diagnosis, and encourage individuals who score below the normal threshold, as well as those who still have concerns, to see their primary care physician for a thorough evaluation.

Currently, there are more than 5 million Americans living with Alzheimer’s disease and that number is expected to nearly triple by mid-century. Advanced age is the greatest known risk factor for the disease, which results in loss of memory and other intellectual functions, and is the sixth leading cause of death in the United States.

For more information about the National Memory Screening Program, call (toll-free) 866-232-8484 or visit www.nationalmemoryscreening.org.

For more information about National Memory Screening Day at Marywood University, please call the Psychological Services Center at (570) 348-6269. For additional information about Marywood University, please visit www.marywood.edu, or call the Office of Admissions, at (570) 348-6234.

Meals on Wheels Community Services of NEPA Conducting Holiday Blanket Drive

The Meals on Wheels of NEPA Holiday Blanket Drive has provided comfort to the elderly and homebound clients of Meals on Wheels of NEPA for more than six years. The program distributes more than 1,000 donated throw blankets, socks, and toiletries to our elderly and homebound clients living throughout Northeastern Pennsylvania during the holiday season. Regular visits from volunteers to deliver meals are often the only contact these individuals have with others. Although the gift of a throw blanket and toiletries might seem like a small gesture, it may be the brightest gift during the holiday season for those who are unable to leave their homes.

The agency is seeking new, unused, and unopened donations of throw blankets, toiletries, socks, or monetary donations for the drive. Please consider helping us this holiday season. Our clients rely on the support of dedicated volunteers and generous donations from the community. Programs like the Holiday Blanket Drive would not exist without caring individuals like you. Please contact Meals on Wheels of NEPA at 570-346-2421 or mealsonwheels@mownepa.org with any questions or to get involved.

The core programming of Meals on Wheels Community Services of NEPA is the Home Delivered Meals program, which serves elderly adults and adults with disabilities in our community. Individuals whose life circumstances make it difficult or impossible for them to prepare needed nourishment receive a hot meal delivered to them by volunteers and caring staff. In addition to keeping the senior well-nourished, Meals on Wheels often provides the only human contact many homebound individuals experience each day. Meals on Wheels of NEPA has been in existence since 1969, and to date, has served over 5 million meals.