OSHA's Emergency Temporary Standards for Mandatory COVID-19 Vaccinations; What Employers Need to Know — November 8, 2021 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

As part of President Biden’s plan for battling the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has issued the anxiously awaited emergency temporary standard (ETS) “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” Consistent with the President’s plan, the ETS requires large employers to adopt policies mandating COVID-19 vaccination or alternatively, policies requiring employees to choose between vaccination or undergoing regular COVID-19 testing.

The ETS is expected to apply to two-thirds of private sector workers. While the ETS does not apply to state and local governments in states without OSHA-approved occupational safety and health programs (“State Plans”), jurisdictions with State Plans (such as New Jersey) must comply with the ETS. Although the ETS does not currently apply to small employers, OSHA cautions that it needs time to assess the capacity of small employers to meet the administrative burdens of the ETS and is seeking comment to help the agency make that determination.

We have distilled the 490-page ETS to provide an overview of the requirements that will be imposed upon large employers under the ETS.

I. LEGAL CHALLENGES

To date, 26 states have filed suit in various federal circuit courts challenging the legality of ETS, principally arguing that OSHA overstepped its statutory authority by manding vaccinations, an issue that the challengers claim rests with the states. On November 6th the Fifth Circuit Court of Appeals (covering FLA, GA, AL, MI, LA, and TX) issued a stay temporarily blocking the implementation of the ETS pending further action by the court.

Despite the legal challenges around the country, employers should nevertheless take steps to comply with the ETS’s requirements because it is unclear what impact, if any, the 5th Circuit ruling has in other jurisdictions. In addition, these challenges will likely be on the fast track and the Circuit Courts or the U.S. Supreme Court could ultimately rule that the ETS is within OSHA’s rulemaking authority and enforceable.

II. SCOPE AND COVERAGE OF THE ETS

How the ETS affects state COVID laws and employer protocols: The ETS makes it clear that state or local requirements banning or limiting an employer’s authority to require vaccination, face covering, or testing are preempted by the ETS. However, the ETS

does not preempt state or local requirements mandating masks in indoor public spaces or proof of vaccination or COVID-19 testing before entering restaurants or other spaces, so long as these requirements do not conflict with the ETS;
establishes minimum requirements and does not prevent employers from implementing additional measures; and
does not displace collectively bargained agreements, preclude bargaining for additional protective measures or prevent an employer from implementing additional protections if not subject to bargaining.

Counting employees to determine if the 100-employee threshold is met: All employees (full-time, part time, temporary, remote, and union employees) in all locations within the United States are counted to determine whether the 100-employee threshold is met.

Temporary and seasonal workers employed directly by the employer are counted, provided they are employed at any point while the ETS is in effect.
If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard; if the 100-employee threshold is subsequently met, the employer must come into compliance with the ETS.

Employers not covered by the ETS. The ETS does not apply to:

employers with less than 100 employees;
state and local governments that have not adopted a State OSHA Plan;
remote workers;
employees who work exclusively outdoors;
federal contractors already subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
employees in settings covered by the Healthcare ETS (29 CFR 1910.502).

Mandatory vaccination policy vs. vaccination or periodic testing policies. The ETS strongly encourages employers to adopt mandatory vaccination policies for all employees except those eligible for the medical or religious exemption (discussed below). However, employers remain free to adopt a policy that requires employees to either be vaccinated or undergo regular COVID-19 testing. In addition, employers can implement partial mandatory vaccination policies that apply to only a portion of their workforce, while permitting other groups of employees to have the testing option.

III. SPECIFIC ETS REQUIREMENTS

Employers must determine every employee’s vaccination status. This determination includes whether the employee is “fully vaccinated”, which occurs 2 weeks after the vaccine course is completed. Booster shots are not included in the definition of “fully vaccinated” under the ETS and there is no requirement to collect information about additional doses. Documentation required to verify vaccination status includes:

record of immunization from a health care provider or pharmacy;
a U.S. COVID-19 Vaccination Record Card;
medical records documenting the vaccination;
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 or clinic site administering the vaccine.

Employers who ascertained employee vaccination consistent with the foregoing prior to the effective date of the ETS and retained records of vaccination are exempt from this requirement for those employees.

Vaccinated employees with no proof of vaccination. If the employee is unable to produce proof of vaccination, the employer may accept a signed and dated statement by the employee, subject to criminal penalties for knowingly providing false information, attesting to their vaccination status and that they have lost and are otherwise unable to produce the required proof of vaccination status.

Record keeping. For the duration of the ETS the employer must maintain records and a roster of employees’ vaccination status, which must be treated as confidential employee medical records.

Mandated paid time off to support vaccination. Employers must support COVID-19 vaccination by providing:

up to 4 hours of paid time off during working hours for primary vaccination dose(s); paid time is not required if an employee chooses to be vaccinated outside of work hours; and
reasonable paid time off, which can be capped at 2 days, for employees to recover from the vaccination, which time may be charged against the employees’ accrued sick time.

Mandated periodic testing for employees who are not fully vaccinated. Unvaccinated individuals may be present in the workplace in several situations:

the employer implemented a hybrid vaccination or testing policy for employees (permitted under the ETS);
the employee has only had one of a 2 does vaccine; or
the employee is excused from a vaccination mandate for medical or religious reasons (discussed further below).

The ETS requires employers to ensure that these employees who are not fully vaccinated:

be tested for COVID-19 at least once a week; and
provide documentation of the most recent test result no later than the 7th day following the date the employee provided the last test result.

Remote and absent employees. Employees who have not reported to the workplace for a 7-day period (e.g., vacationing employees or remote workers entering the workplace) must provide a negative test taken within 7 days of returning to the workplace.

Testing of employees who had COVID-19. Employees who have recently contracted the virus cannot be required to undergo testing until 90 days following the positive test or diagnosis, due to the statistical average for false positives during this timeframe because of the presence of antibodies to the virus. However, simply having COVID-19 antibodies does not excuse the testing requirement for unvaccinated employees.

Cost of testing. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.

Over-the-counter self-tests. To satisfy the requirements of the ETS, over-the-counter antigen tests may not be self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Employee notification of a positive COVID-19 test and removal from the workplace. Employers must require all employees to provide prompt notification when they receive a positive COVID-19 test or diagnosis. These employees must be immediately removed from the workplace until the employee:

receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek confirmatory testing;
meets the return-to-work criteria in CDC’s “Isolation Guidance”; or
receives a return-to-work recommendation from a licensed healthcare provider.

However, the standard does not require the removal of an unvaccinated employee if they have been exposed to a COVID-19 positive person.

Payment during absence. Employers are not required to pay employees excluded from the workplace, but paid time off may be required by other laws, regulations, or collective bargaining agreements.

Reporting COVID-19 fatalities and hospitalizations. Employers are required to report to OSHA every work-related COVID-19 fatality within 8 hours, and each work-related hospitalization within 24 hours, of learning of these incidents.

Employers must adopt written vaccination policies. Employers must implement, distribute, and enforce written vaccination policies.

Mandatory vaccination policies. Employers adopting mandatory vaccination policies must ensure that the policy requires each employee to be fully vaccinated except for those who fall into one of three categories:

those for whom a vaccine is medically contraindicated,
those for whom medical necessity requires a delay in vaccination, or
those who are legally entitled to a reasonable accommodation for a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

The policy must also require new employees to be vaccinated as soon as practicable.

Mandatory vaccination or periodic testing policies: Employers adopting policies that permit employees to opt for vaccination or periodic testing must ensure that the policy contains the following components:

requiring employees to choose either to: (1) be fully vaccinated against COVID-19 or (2) provide proof of regular testing for COVID-19 at least once a week;
detailing the procedures for the periodic testing in accordance with the requirements described above;
mandating that employees not opting for vaccination must wear face coverings except:

When alone in a room with floor to ceiling walls and a closed door.
For a limited time while eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
When wearing a respirator or facemask.
Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph.

Additional Requirement for all COVID-19 vaccination policies. In addition to the forgoing, COVID-19 vaccination policies must include the following details:

the process that will be used to determine employee vaccination status;
the time and pay/leave employees are entitled to for vaccinations and side effects following vaccination;
the procedures employees must follow to provide notice of a positive COVID-19 test or diagnosis and the procedures for requesting records;
information about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html ;
inform employees that the employer is prohibited from discharging or discriminating against an employee for

reporting work-related injuries or illness
exercising rights under the ETS
filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by OSHA; and

inform employees of the prohibitions of 18 U.S.C. § 1001 and of Section 17(g) of OSHA providing for criminal penalties for knowingly supplying false statements or documentation.

Template policies: Sample Mandatory Vaccination and Vaccination or Testing and Face Covering policies can be found on OHSA’s website at https://www.osha.gov/coronavirus/ets2

Effective Date and Employer Compliance Dates

November 5, 2021: The effective date of the ETS. OSHA anticipates that the ETS will be in effect for six months (or until May 5, 2022) but will continue to monitor trends in COVID-19 infections and deaths as the pandemic continues to evolve.

December 5, 2021: The date that employers are required to comply with all ETS requirements EXCEPT the periodic testing mandate.

January 4, 2022: The date that those employers who adopted policies permitting employees to undergo COVID-19 testing in lieu of vaccination need to implement weekly testing.