Update December 20, 2021
After a federal district court stayed the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) mandating vaccines for employers with more than 100 employees, the Sixth Circuit Court of Appeals reinstated it Friday, December 17, 2021. This likely is not the end for court challenges to the ETS, but, for now, employers should start or continue to prepare for its looming deadlines.
It is finally here: the Occupational Safety and Health Administration (OSHA) has released its long-awaited emergency temporary standard (ETS) mandating vaccinations or testing for employees of large employers (those that employ 100 or more employees). While many employers have voluntarily established mandatory vaccination policies, the lack of consistent applicable laws and guidance has made them difficult to administer. Recognizing the need for universal standards, and considering the continued high transmissibility of COVID-19 in the workplace, the OSHA ETS is the federal government’s attempt to stem the tide of infections among workforces. The ETS is scheduled to be published in the Federal Register on November 5, 2021 and will take effect immediately upon its publication. OSHA has also published helpful supplemental documents, including fact sheets, an ETS summary, and frequently asked questions. Below is a high-level overview of some of the key provisions for employers based on the ETS and these supplemental documents.
Employees Must Be Fully Vaccinated or Receive Weekly Testing
Employers may implement a mandatory vaccination policy or allow employees to be tested on a regular basis. By January 4, 2022, all covered employers must ensure that their employees have received the necessary shots to be fully vaccinated. Under the ETS, “fully vaccinated” means two weeks have passed since the individual completed primary vaccination with a COVID-19 vaccine (including those approved or authorized for emergency use by the U.S. Food and Drug Administration). It does not include booster shots at this time. Employees who are not fully vaccinated may be tested for COVID-19 at least on a weekly basis (if the employee is present in the workplace at least once a week) or within seven days before returning to work (if the employee is away from the workplace for a week or more). Employees who test must also wear proper face coverings when working. Employees who do not provide documentation of a COVID-19 test result as required by the ETS may not report to work on-site. Employees who have been diagnosed with COVID-19 within the preceding 90 days should not be tested but must wear a proper face covering. Employees may be exempt from the vaccination requirement if (i) the vaccine is medically contraindicated; (ii) medical necessity requires a delay in vaccination; or (iii) they are entitled to a reasonable accommodation for a disability or sincerely held religious beliefs, practices, or observances that conflict with the requirement. The ETS also makes clear that employers can implement different policies for different segments of their workforce consistent with business needs. For example, public-facing employees may be subject to a mandatory vaccination policy while those who perform intermittent telework may be subject to a vaccination or testing policy.
Testing Is Restricted
Under the ETS, a COVID-19 test must be a test for SARS-CoV-2 that is (i) cleared, approved, or authorized, including in an emergency use authorization, by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (ii) administered in accordance with the authorized instructions; and (iii) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. The rule thus would appear to allow employers to rely on either antigen or PCR test results.
Employers Must Have a Written Policy
Employers’ written policies should address the requirements of the ETS, including, but not limited to, (i) the requirements for COVID-19 vaccination or testing/mask wearing; (ii) exclusions/exemptions; (iii) information on determining, documenting, and collecting employees’ vaccination status; (iv) paid time off for vaccination purposes; (v) protocols for the notification of positive COVID-19 tests and removal of COVID-19-positive employees from the workplace; (vi) procedures used for requesting vaccination and other records; (vii) information for unvaccinated individuals on testing and face coverings; (viii) the disciplinary consequences for employees who fail to abide by the policy; (ix) the policy’s effective date; (x) covered employees; (xi) relevant deadlines; and (xii) the procedures for compliance with and enforcement of the policy. This policy should be distributed to all employees. The ETS also requires employers to provide employees with the following information in a language and at a literacy level that can be understood by employees: (1) the Centers for Disease Control and Prevention (CDC) document, “Key Things to Know About COVID-19 Vaccines”; (2) information about protections against retaliation and discrimination; and (3) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Employers Must Collect Proof of Vaccination and Keep Records
Under the ETS, an acceptable proof of vaccination includes a physical or digital copy of (i) the record of immunization from a healthcare provider or pharmacy; (ii) a copy of the U.S. COVID-19 Vaccination Record Card; (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or (v) a copy of any other official documentation that contains 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). The frequently asked questions make clear that employers must maintain this proof of vaccination, and, accordingly, this requirement cannot be fulfilled by an employee merely telling or showing the employer their vaccination status. Employers must also keep a roster of employees and their vaccination status. The roster must clearly indicate for each employee whether he/she is fully vaccinated, partially vaccinated, not fully vaccinated because of an acknowledged accommodation, or not fully vaccinated because he/she has not provided acceptable proof of their vaccination status. OSHA takes the position that such records (proof of vaccination and employee roster) must be kept in the same manner as other confidential employee medical information. In a similar vein, employers must keep records of employees’ negative test results for unvaccinated employees.
Employees May Bear the Cost of Testing
The ETS does not require employers to pay for any costs associated with testing. This provision may be of limited utility, as the ETS notes payment may be required by another law or regulation, or by a collective bargaining agreement. For example, if testing is provided as an accommodation, employers will likely need to pay for it under the Americans with Disabilities Act. Similarly, if testing is provided under an employee assistance program that is subject to ERISA, the employer must pay the full cost. Other laws, too, may require payment to be made for the time spent getting tested by non-exempt employees.
Employees Must Receive Time Off for Vaccination and Side Effects
Employers must provide up to four hours of paid time off during working hours for employees to receive the vaccination. This time should be paid at the employees’ regular rate of pay and may not be deducted from other available leave banks. Interestingly, OSHA states that employers are not required to pay for this time if it is taken during non-working hours, such as on weekends. However, we caution against this, as this practice could run afoul of federal and state wage and hour laws. Employers must also pay for the vaccination itself, if required. Employers must provide additional “reasonable” time off for employees experiencing side effects from the vaccine. This time off may be deducted from sick time or other available paid leave. If an employee does not have any sick or paid leave available, employers must still provide “reasonable” time off, and cannot require employees to go into a negative bank or borrow against future leave time. OSHA has stated that “reasonable” time can be capped and suggests that two days per vaccination dose for side effects is “reasonable.” According to the ETS, employers do not need to provide paid time off if an employee is removed from the workplace because of a positive COVID-19 test; however, this may otherwise be required under state and local law.
Positive Employees Must Be Removed from the Workplace
Consistent with guidance from the CDC and state and local public health authorities, employees who test positive for COVID-19 must notify their employers, should not report to work, and should be removed from work immediately. Employees who receive a positive COVID-19 test or are diagnosed with COVID-19 may not return until they receive a negative confirmatory test, meet the criteria to return per the CDC’s Isolation Guidance, or receive a recommendation from a healthcare provider that they can return to work. Interestingly, the ETS does not require contact tracing, nor does it require employees to be removed from the workplace if they have been exposed to COVID-19, but these actions may be required by state and local public health authorities.
The 100-Employee Threshold Is at the Firm-wide or Corporate-wide Level
The ETS applies only to employers with 100 or more employees at the employer level. In order to determine the number of employees, employers should include all of their employees across all locations, including those who work remotely, who do not report to the main office, or who do not perform work on-site. This count should include all employees, including employees who work exclusively outdoors, employees who are already vaccinated, part-time employees, and temporary and seasonal employees who are employed by the employer at any point while the ETS is in effect. Specifically excluded from this count are independent contractors, employees of franchisees, and individuals who are placed at the employer’s location through a temporary staffing agency. The determination of whether an employer is covered should be made based on the number of employees as of November 5, 2021. If an employer reaches 100 employees after that date, the employer must comply with the ETS at that time. According to the frequently asked questions, once an employer reaches 100 employees while the ETS is in effect, it will be covered by the ETS, even if its employee count subsequently falls below 100.
The ETS Establishes the Minimum Requirements
The ETS establishes the floor, not the ceiling. In other words, employers are free to implement stricter measures, or to negotiate with bargaining representatives for additional measures. The ETS does not displace collectively bargained agreements that exceed the requirements of the ETS.
Certain Employers and Employees Are Not Covered by the ETS
The ETS does not apply to most state or local governments, federal contractors, employees of federal agencies, or employers covered by the Healthcare Emergency Temporary Standard. It also does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
The ETS Pre-empts Some State and Local Requirements
As a federal standard, the ETS is intended to pre-empt and invalidate state and local bans or limits on an employer’s ability to require vaccinations, face coverings, or testing among its workforce. This is consistent with OSHA’s rulemaking authority, which states that once OSHA promulgates federal standards addressing an occupational safety and health issue, states and localities may no longer regulate that issue, except with OSHA’s approval and the authority of an approved state plan.
Employers Have 30 or 60 Days to Comply
While the ETS goes into effect immediately, OSHA has set deadlines for employers to comply. No later than 30 days after November 5, 2021, employers must comply with all of the ETS’s requirements other than testing for employees who have not completed their entire primary vaccination dose(s). No later than 60 days after November 5, 2021, employers must require testing for employees who are not fully vaccinated.
Employers Must Report COVID-19 Fatalities and Hospitalizations to OSHA
The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within twenty-four hours of the employer learning about the hospitalization. The determination of work-relatedness is to be made in accordance with existing guidelines, which require that the case be the result, at least in part, of an event in the work environment.
While the ETS is currently considered “temporary,” OSHA intends to make all or part of it a final rule. As it goes through that process, OSHA will continue to monitor COVID-19 trends and update the ETS accordingly. We will also monitor any updates and update this article with any important changes. In the interim, if they have not already, covered employers should draft and implement their mandatory vaccination or vaccination/testing policies and inform their workforce of these requirements. We anticipate that there will be legal challenges to the ETS from states and other employee groups. Covered employers who already have mandatory vaccination policies should review them to make sure they comply with the ETS. Employers not currently covered should be aware that OSHA is considering extending the rule to smaller and perhaps all employers, and, accordingly, may wish to take steps to position their workforce for potential coverage as OSHA’s rulemaking progresses. As regulations involving COVID-19 in the workplace continue to change, employers are strongly advised to continue to seek and communicate with counsel to ensure they are compliant with new developments. If your company or organization has any questions about OSHA requirements for employers, please contact the authors of this article or any other attorney in Venable’s Labor and Employment Group.