I. Introduction

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued the long-awaited emergency temporary standard (“ETS”), which provides a roadmap to the Biden Administration’s private sector vaccine mandate.  Specifically, the ETS requires large employers—those with 100 or more employees— to either mandate COVID-19 vaccinations for their employees or require COVID-19 vaccinations along with an option for unvaccinated employees to receive weekly testing and wear a mask in lieu of being vaccinated.  The ETS will remain in effect for six months, or until May 5, 2022, and constitutes the administration’s proposal for a permanent standard. If no permanent standard is enacted before May 5, 2022, the ETS expires.

 

II. Fifth Circuit Stay

On Saturday, November 6, the Fifth Circuit Court of Appeals issued a national temporary stay of the ETS because “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.”  The stay means that OSHA can take no action regarding the ETS until the Fifth Circuit lifts the stay.

  • When will a decision on the permanent stay issue?
    • The Government’s brief in opposition to the petition for a permanent injunction was due at 5 p.m. on Monday, November 8.  The response of the petitioners is due at 5 p.m. on Tuesday, November 9.  A decision could come as early as the end of this week (November 12) on whether the stay becomes permanent.
  • What will happen if the Fifth Circuit issues a permanent stay?
    • The issue will be appealed to the United States Supreme Court on an emergency basis.  If the Supreme Court gets involved, which seems likely, the effective dates in the ETS are likely to be delayed due to briefing and argument schedules.
  • What steps should impacted employers take now?
    • Because of the short thirty day compliance time frame in the ETS, we recommend that employers continue to prepare for possible implementation of the ETS.

 

III. Definitions In The ETS
  • Which employers are covered?
    • Private employers with 100 or more employees (firm or corporate-wide).
  • Which employees count toward the 100 employee threshold?
    • Employees working at different locations of the employer
    • Part-time employees
    • Employees working from home
    • Seasonal employees employed at any point while the ETS is in effect
    • Employees working offsite, such as customer’s homes
    • Employees who work exclusively outdoors (although not all requirements of the ETS will apply to outdoor workers).
  • Which workers do NOT count toward the 100 employee threshold?
    • Employees of a separate franchisee.  For example, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.
    • Independent contractors
    • Employees of a staffing agency working at your location
  • To which employees does the ETS NOT apply?
    • Employees not reporting to a workplace where coworkers are present
    • Employees working from home
    • Employees working exclusively outdoors
    • Healthcare workers covered by the ETS
    • Federal Contractors covered by Executive Order 14042 also covered by the ETS

 

IV. General Overview of the ETS
  • What is required of Employers?
    • Develop, implement and enforce a COVID-19 vaccine policy.  Employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
    • Determine and record employee vaccination status. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
    • Test employees who are not vaccinated. The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
    • Ensure the use of face coverings. The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
    • Educate employees about the Company’s new policies regarding the ETS. Employers must provide employees with the following: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
    • Set up a reporting and removal process for employees who test positive for COVID-19. This reporting and removal process must: (1) require employees to promptly provide notice when they receive a positive COVID19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.
    • Report COVID-19 fatalities and hospitalizations to OSHA. Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
    • Maintain records of employee vaccination status. The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
  • What are the deadlines?
    • All requirements other than testing for employees who have not completed their primary vaccination doses go into effect December 5, 2021.
    • Testing for employees who have not received all doses required for a primary vaccination goes into effect January 4, 2022.

 

V. Employer Policy on Vaccination
  • What should an employer COVID-19 policy include?
    • Model policies for employers are posted at https://www.osha.gov/coronavirus/ets2
    • An employer COVID-19 policy should detail whether the employer is implementing a mandatory vaccine requirement or a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace, all relevant information regarding the policy’s effective date, to whom the policy applies, deadlines employees must abide by, and procedures for compliance and enforcement.
    • Mandatory vaccine policies should, at a minimum, also detail what process will be used to determine employee vaccination status, what applicable exemptions apply (i.e. disability and religious exemptions), what paid leave employees are entitled to for vaccinations and side effects, how employees should notify employers of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace, and what disciplinary action will be used for employees who do not abide by the policy.
    • Policies allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear face coverings should, at a minimum, in addition to the vaccine policy requirements in the bullet points above, detail the mask requirement, when employees need to be tested, and how and when test results will be collected and stored, how the testing will be paid for.
  • Do you recommend implementing a mandatory vaccine policy or a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear face coverings?
    • OSHA’s preference is a mandatory vaccination policy.  That being said, the answer will largely depend on your employee base.
    • In addition to allowing for a mandatory vaccination policy or a policy permitting employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear face coverings, the ETS also permits a partial mandatory vaccination policy that requires mandatory vaccination for some employees, but allows other employees the choice of vaccination or testing.
    • Employee preference for a testing or hybrid option should be weighed against the additional possible costs, complexity, and compliance and reporting requirements involved in allowing for a testing option or a hybrid option.
  • Are employers required to submit their vaccination plan/policies to OSHA?
    • No, unless requested.  If requested, the employer must provide its written policy to the Assistant Secretary within 4 business hours of the request.

 

VI. Vaccination Status
  • How do employers determine employee vaccination status?
    • The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. This is an ongoing requirement for the employer (i.e., the employer needs to update this information as employees proceed through the vaccination process).
    • Employers must also maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintain a roster of each employee’s vaccination status.
  • What is acceptable proof of vaccination?
    • The following are acceptable for proof of vaccination: (i) the record of immunization from a health care provider or pharmacy; (ii) a copy of the U.S. CDC COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020) (CDC, October 5, 2021); (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, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
    • An employee who does not possess their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physician’s office) to obtain a new copy or utilize their state health department’s immunization information system.
    • If an employee has no other way to prove they are vaccinated, they can provide a signed attestation that they have been vaccinated. The ETS provides specific language that must be used. While employers may not invite or facilitate fraud, the ETS does not require employers to monitor for or detect fraud.
  • Do employers have to provide paid time off?
    • Employers must provide employees with up to 4 hours paid time off for each primary vaccination series doses. This includes travel time and can be in the form of already accrued sick leave, if available.  If not, leave must be provided for this purpose.
    • Reasonable amount of paid sick leave to recover from any side effects experienced following each primary vaccination series dose

 

VII. Mandatory Vaccination
  • Are there possible exemptions to mandatory vaccination?
    • Employees who fall into one of three categories may be exempt from mandatory vaccination: 1) those for whom a vaccine is medically contraindicated, 2) those for whom medical necessity requires a delay in vaccination, or 3) those 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.
  • Is allowing employees to participate in weekly testing with a mask requirement a reasonable accommodation?
    • Yes.
  • May employers with a mandatory vaccine only policy discipline, up to and including terminate, employees who refuse vaccination?
    • Yes.

 

VII. Requirements for Unvaccinated Employees
  • What are the testing requirements for unvaccinated employees?
    • Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Do unvaccinated employees who work remotely need to be COVID-19 tested weekly?
    • No.
  • If an unvaccinated employee comes into work once a month, is that employee required to be tested weekly?
    • No. However, the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace.
  • Must employees who have been partially vaccinated be tested weekly
    • Yes. Employers must ensure that each employee who is not “fully vaccinated” complies with the weekly testing requirement.  In the case of a two-dose primary vaccination series (e.g., Pfizer-BioNTech and Moderna), an employee is not considered “fully vaccinated” until 2 weeks after receiving the second dose of the series. Therefore, employers would need to ensure employees continue to test weekly until 2 weeks after receiving their second dose.
  • If an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief that prevents them from being vaccinated, does the employee still need to be tested weekly?
    • Yes. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.
  • Are employers required to pay for costs associated with COVID-19 testing?
    • No, with some exceptions — employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
        • For example, employers should determine whether the cost of testing, if paid for by the employee, will bring the employee’s weekly pay below minimum wage. If so, both the Fair Labor Standards Act and some state laws would be triggered and employee payment for testing would be prohibited.
        • Also, employers may be required under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested. For example, if the employee testing is conducted in the middle of a work shift.
        • Many states have statutes requiring employer payment of job-related medical testing for applicants and/or employees. It is unclear how these statutes will apply to the ETS.
    • Employers are permitted to assume the cost of COVID-19 testing.

 

IX. Recordkeeping Requirements
  • Is maintenance of records in accordance with the ETS subject to applicable legal requirements for confidentiality of medical information?
    • Yes
  • If an employer has asked employees about their vaccination status prior to the effective date of the ETS AND retained records of employee response, what is required of the employer?
    • Employers are not required to re-evaluate vaccination status for fully vaccinated employees
    • Employers are permitted to use any record of response, even if it is not listed as acceptable proof under the ETS
    • Employers are required to create a roster of each employee’s vaccination status
    • Employers are required to maintain proof of vaccination and roster as employee medical records while the ETS is in effect.
  • Do employers have to maintain a copy of each COVID-19 test result for each unvaccinated employee?
    • The employer must maintain a record of each test result required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer.
  • Do employers need to keep records when they receive notice that an employee has tested positive for COVID-19?
    • The ETS does not contain specific requirements for the employer to establish or maintain records of employee notifications of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider.

 

X. Other Considerations
  • How will OSHA enforce the ETS and what are the penalties for noncompliance?
    • OSHA will enforce the rule through inspections as it does with other workplace-related policies. These inspections can be triggered by employee complaint or through planned inspections.
    • The penalty for a serious violation is up to $13,653 per violation and the fine for a willful violation is up to $136,532 per violation.
  • How will the ETS impact State laws that prohibit or limit the employer’s authority to mandate vaccination?
    • The ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally approved State Plan.
  • How will the ETS impact OSHA State Plans?
    • OSHA State Plans must be “at least as effective” as the EST.
    • OSHA will work with States with State Plans that do not meet the “at least as effective” standard set by OSHA to bring such State Plans up to standard.
    • States are permitted to maintain State OSHA Plans with requirements that are more rigorous than the EST.
  • Are there any union related considerations?
    • Any mandated vaccination program would likely be a mandatory subject of bargaining with the union (depending on the discretion in the management rights clause).
    • Remember that Section 7 protects all employees’ (not just unionized employees) right to protest allegedly unsafe workplaces.
    • Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS. Nothing in the ETS, however, prevents employers from agreeing with employees and their representatives to implement additional measures, and the ETS does not displace collectively bargained agreements that exceed the requirements of the ETS. As examples of additional measures that could be implemented via collective bargaining, employers might agree to cover the costs of face coverings or medical removal, or to adopt a requirement that all employees, regardless of vaccination status, wear face coverings while working indoors.

For additional guidance on OSHA’s emergency temporary standard, please contact a member of O’Hagan Meyer’s Labor and Employment Team here.