On November 5, 2021, the Occupational Health and Safety Administration (OSHA) officially published the much-anticipated Emergency Temporary Standard (ETS) for employers with 100 or more employees. Under the ETS, covered employers must require employees to be fully vaccinated or submit to weekly testing and mandatory face coverings indoors. Employers who choose to implement a mandatory vaccination policy must establish a vaccination policy and comply with the additional requirements under the ETS by December 6. Employees have until January 4, 2022 to be fully vaccinated. Employers who opt for testing and masking employees who are not fully vaccinated have until January 4, 2022 until they must require testing.
The ETS already is facing numerous legal challenges by several states, including Alaska, Arizona, Arkansas, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Texas, and Wyoming. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order staying implementation of the ETS, the ultimate outcome of which may hinge on which Circuit and which panel of judges ultimately addresses the various pending legal challenges, as it appears likely they will be consolidated under the federal rules governing multidistrict litigation. But while the issue of whether and when the ETS goes into effect remains to be seen, employers otherwise covered by it should nevertheless take steps now to comply with the deadlines, including our recommendations below in the final section of this Insight.
The ETS applies to employers with 100 or more employees. To determine if an employer meets the 100-employee threshold, employees in all U.S. locations must be counted, including part-time employees. Independent contractors may be excluded. Contingent workers must be included among the staffing agency’s employees rather than the host employer’s employees.
The ETS does not apply to workplaces covered by President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (Executive Order 14042). If a federal contractor has at least 100 employees and has some workplaces that are not covered by Executive Order 14042, however, that employer must comply with the ETS for workplaces not covered by the Executive Order. The ETS also does not apply to settings where any employee provides healthcare services or healthcare support services while they are covered by OSHA’s Healthcare ETS.
The ETS also excludes from coverage: (1) remote employees, (2) employees who do not report to a workplace where other individuals such as coworkers or visitors are present (e.g., a laboratory where only one employee works), and (3) employees who work exclusively outdoors.
The ETS requires covered employers to implement a written policy consistent with the ETS. Employers have two choices. First, they may implement a mandatory written vaccination policy. The policy must allow exceptions where vaccination is medically contraindicated or a medical necessity requires a delay in vaccination. Employers also must consider reasonable accommodations for employees with a disability or a sincerely-held religious belief, practice, or observance that prevents receipt of a COVID-19 vaccine.
Alternatively, covered employers may implement a written policy requiring employees who are not fully vaccinated to provide a negative COVID-19 test on a weekly basis and to wear face coverings while indoors. The ETS makes clear, however, that a mandatory vaccination policy is strongly preferred.
Employers with vaccination policies already in place are not necessarily required to implement a new policy, although they must evaluate their current policies to determine if any changes are needed to comply with the requirements of the ETS.
To assist employers with complying with the requirements of the ETS, OSHA has issued two sample policies—one policy for mandatory vaccination and another allowing testing and face coverings as an alternative to vaccination.
Vaccinated employees must provide proof of vaccination. Acceptable forms of proof include: (1) a copy of the CDC COVID-19 Vaccination card; (2) a copy of medical records documenting vaccination; (3) a record of immunization from a healthcare provider or pharmacy; (3) a copy of immunization records from a public health, state, or tribal immunization information system; or (4) a copy of any other official documentation that includes the type of vaccine administered, the dates, and the name of the healthcare professional or clinic who administered the vaccine.
If an employee is unable to provide an acceptable form of proof, the employer may accept a signed and dated statement from the employee attesting to their vaccination status and that they have lost or are otherwise unable to provide proof of vaccination.
Any employee who does not submit proof of vaccination must be treated as unvaccinated. Employers must retain an acceptable form of proof of vaccination for each employee and maintain a record of each employee’s vaccination status. Employers also must maintain a roster of each employee’s vaccination status (fully vaccinated, partially vaccinated, or unvaccinated).
Vaccination records and the roster should be treated as confidential medical records and maintained in files separate from employees’ personnel files. The records and roster must not be disclosed except as authorized under the ETS or other applicable federal law. Employers must maintain the records and roster while the ETS is in effect.
Importantly, employers who already determined employees’ vaccination status through documentation or self-attestation are exempt from doing so again, unless the employer did not retain the proof.
Employers must grant employees up to four hours of paid time off to receive each dose of a COVID-19 vaccine, including travel time, at the employee’s regular rate of pay. Employers may not require employees to use other accrued leave such as paid sick leave or vacation leave. The ETS also requires employers to provide employees “reasonable time and paid sick leave” to recover from vaccine-related side effects. Employers may require employees to use accrued paid sick leave for this purpose. If an employee has insufficient accrued paid sick leave, employers must provide additional paid sick leave. The ETS provides that employers may limit paid leave to recover from vaccine-related side effects to a “reasonable” amount, which OSHA suggests to be no less than two days.
Employees who are not fully vaccinated and who report at least once every seven days to a workplace where others are present must submit to weekly COVID-19 testing. Employees who are not fully vaccinated and who report to a workplace only occasionally must provide test results within seven days prior to returning to the workplace.
According to the ETS, employers need not pay for employees’ weekly COVID-19 testing, unless otherwise required by applicable laws.
Similar to documentation of vaccination status, employers must maintain a record of each test result. Such records must be kept confidential and not disclosed, unless required by applicable law.
Any employee who receives a positive test result or COVID-19 diagnosis should notify the employer immediately and not report to the workplace. If an employee learns about a positive test result or diagnosis while at work, they must leave immediately and notify the employer as soon as safely possible.
Employees who are removed from the workplace due to a positive test result or COVID-19 diagnosis may not return until one of the following return-to-work criteria is met: (1) The employee receives a negative NAAT test following a positive antigen test indicating the employee received a false positive; (2) The employee receives a return-to-work recommendation from a licensed healthcare provider; or (3) The employee satisfies all of the following: (a) at least ten days have passed since symptoms first appeared; (b) at least 24 hours have passed without a fever without using fever-reducing medications; and (c) the person’s other symptoms have improved other than loss of taste and smell. Asymptomatic individuals who test positive may return after 10 days from the date of the positive test.
Employees who are not fully vaccinated must wear a face covering while indoors or when in a vehicle with another person for work purposes. Face coverings are not required if an employee is alone in a room with floor to ceiling windows and a closed door or while eating or drinking. Employees also may remove their face coverings for the purpose of identification when complying with safety and security requirements.
The ETS also provides that employers may consider a reasonable accommodation for employees with a disability or a sincerely-held religious belief, practice, or observance that prevents them from wearing a face covering.
OSHA intends for the ETS to preempt any conflicting state or local laws that ban or limit an employer’s ability to require vaccines, testing, or face coverings. Some states have issued their own state OSHA plans. Generally, such state plans must be at least as effective as the ETS. Under OSHA’s regulations, states with their own state OSHA plans have 30 days from the promulgation of the ETS to adopt a state ETS or to demonstrate that a new ETS is unnecessary because the state plan is at least as effective as OSHA’s ETS.
The ETS took effect on November 5, 2021, except in states with their own state OSHA plans. Covered employers have until December 6 to establish a vaccination policy and to comply with other requirements such as determining employees’ vaccination status, providing employees with paid time off to receive a vaccine and/or to recover from vaccine-related side effects, and ensuring that employees who are not fully vaccinated wear face coverings indoors. Employees have until January 4, 2022 to be fully vaccinated (or submit to at least weekly testing). Also on January 4, employers must begin weekly testing for any employee who is not fully vaccinated and who reports to a workplace where others are present.
As noted above, however, several states have filed lawsuits challenging the constitutionality of the vaccine mandate and on November 6, 2021, the Fifth Circuit Court of Appeals issued an emergency stay, which has temporarily halted enforcement of the vaccine mandate.
Although the enforceability of the ETS is currently in flux due to pending legal challenges, employers should take steps now to comply in the event the ETS is upheld, including the following: