Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing
Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standards for COVID-19 (the “ETS”) along with a landing page on its website with various compliance materials, FAQs, and a pre-recorded webinar. As expected, the ETS mandates that all employers with 100 or more employees require its employees to be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022. The ETS contains a host of other compliance obligations that employers will need to put in place by December 5, 2021, including having detailed written policies. Shortly after OSHA released the ETS, President Biden issued a Fact Sheet announcing that the December 8, 2021, COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations.
The ETS is effective today. Employers, however, will have until December 5, 2021, to comply with all of the requirements of the ETS other than the vaccine and testing requirements. The vaccine and testing requirements will go into effect on January 4, 2022.
OSHA anticipates that the ETS will be in effect for six months (i.e., May 5, 2022), but OSHA may update the ETS depending on how the pandemic evolves over the coming months.
As expected, the ETS will cover all employers that have 100-plus employees as of the November 5, 2021, effective date. Employers must count employees company-wide in the United States at all locations, including part-time, temporary, and seasonal employees, but can exclude independent contractors from those counts.
OSHA indicates that a single employer analysis can apply for determining coverage of corporate affiliates if those entities “handle safety matters as one company” such that they make up an “integrated single employer.” OSHA, however, said that franchisor and franchisees would generally be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise. In addition, employers using staffing agencies would not need to count employees of the staffing agency for coverage purposes.
OSHA noted that if employers have 100-plus employees as November 5, 2021, they will be covered for the duration of the ETS, even if they later drop below 100 employees. Employers with less than 100 employees can become subject to the ETS if they cross the 100-employee threshold during the duration of the rule.
The ETS requirements apply to all employees (including part-time employees) of covered employers except for employees:
“Workplace” is defined in the ETS as a “physical location (e.g., fixed, mobile) where the employer’s work or operations are performed.” It does not include an employee’s residence
The ETS also makes clear that only one set of federal vaccination rules will apply to employees. The ETS was released at the same time as the vaccine mandate for the Centers for Medicare and Medicare Services, which covers certain healthcare workers. Employers with workplaces subject to the EO 14042 or the CMS rule will not be subject to the ETS. Employers, however, may have to contend with separate federal vaccine rules if they have some employees who are covered by the ETS and others that are subject to EO 14042 or the CMS rule. So, for example, if a federal contractor has a workplace subject to EO 14042, that contractor would only need to comply with EO 14042 for employees at that facility. If the same contractor had another workplace that was not covered by EO 14042, then that facility could be subject to the ETS or the CMS rule, as applicable.
The ETS requires covered employers to “establish, implement, and enforce” either:
If a covered employer opts to implement a mandatory COVID-19 policy, it must ensure all employees, including all new hires, are fully vaccinated on or before January 4, 2022, subject to the following limited exemptions:
OSHA states in FAQs that employers in certain situations can develop different vaccination policies for different segments of their workforce. For example, a retail employer could have mandatory vaccination policy for retail stores and an optional vaccination and testing policy for employees who work at the headquarters or perform intermittent remote work. Of course, employers should be mindful of having similar policies for employees who are similarly situated to avoid possible discrimination claims.
The OSHA ETS indicates that employees are “fully vaccinated” two weeks after receiving the second dose in a two-dose series (e.g., Pfizer or Moderna), or two weeks after receiving a single‑dose vaccine (e.g., Johnson & Johnson/Janssen). Vaccines are acceptable under the ETS if they are approved or authorized for emergency use by the FDA; listed for emergency use by the World Health Organization (WHO); or administered as part of a clinical trial at a U.S. site, subject to certain requirements. OSHA refers employers to the FDA or the WHO websites of a list of authorized vaccines. Booster shoots are not required for employees to be fully vaccinated. Employees are not exempted from vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection.
OSHA acknowledges that employers must grant requests for accommodations due to disabilities or sincerely held religious beliefs, but refers employers to the Equal Employment Opportunity Commission (EEOC) guidance on how to process those accommodations. Employers must still require employees who receive an exemption from COVID-19 vaccines due to a medical contraindication, medical necessity, or accommodation for a disability or sincerely held religious belief to comply with the masking and testing requirements under the ETS, unless those employees have an accommodation from those requirements or work remotely.
Employers must require covered employees to provide “acceptable proof of vaccination status, including whether they are fully or partially vaccinated.” Acceptable proof of vaccination status includes any of the following:
Employees unable to provide that documentation are allowed under the ETS to self-attest to their vaccination status. The self-attestation must include the following:
Employees who fail to provide an acceptable proof of vaccination or self-attestation must be treated as not fully vaccinated for purposes of the ETS and subject to COVID-19 testing and masking.
OSHA says that employers are “not required to monitor for or detect fraud” for vaccine documentation, but employers who knowingly accept falsified vaccination documentation from employees may be subject to criminal and other penalties.
The ETS requires all unvaccinated employees who report to the employer’s workplace at least once a week to submit to a COVID-19 testing at least once every seven days and provide documentation of their results within a week of the test. Unvaccinated employees who do not report to the workplace at least once a week must submit to COVID-19 testing within seven days prior to returning to the workplace and provide their test results upon return to the workplace.
Employees who fail to provide documentation of their negative COVID-19 test result must be barred from the workplace until they can provide a negative COVID-19 test result. Employers cannot require employees who test positive for or are otherwise diagnosed by a licensed healthcare provider with COVID-19 to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis. The reason for this requirement, according to OSHA, is that there is a high likelihood of false positive results within 90 days after an employee has tested positive or been diagnosed with COVID-19.
The ETS only permits employees to use COVID-19 tests that have been cleared, approved, or authorized by the FDA to detect COVID-19 (e.g., a viral test). In addition, employees cannot self-administered COVID-19 tests unless observed by the employer or an authorized telehealth provider.
Many employers have feared that there may not be a sufficient supply of COVID-19 tests available or labs to process them to keep up with demand under the ETS. Although OSHA states that it believes this will not be an issue, OSHA said that it will consider refraining from enforcement where employers attempt in “good faith” to comply with the ETS.
Employers must require employees (regardless of vaccinated status) to “promptly notify” them when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. Once notified, employers must remove those employees from the workplace and keep the employee removed until the employee either:
Employees that have been removed from the workplace can still work remotely, but employers should not require them to work if they are too ill. Notably, the ETS does not require contract tracing or removal of an unvaccinated employee if they have been exposed to a COVID-19 positive person—removal is only required for a positive COVID-19 test or diagnosis.
The ETS requires all employees who are not fully vaccinated to wear “face coverings” when indoors and when in a vehicle with others for work, subject only to the following limited exceptions:
The ETS defines “face coverings” as a covering that completely covers the nose and mouth and that meets all the following requirements:
Employers must ensure that employees properly wear their face coverings to fully cover their nose and mouth and replace it if it is damaged (e.g., wet, has holes, or broken ear loops). Employers can allow employees to wear face shields in addition to face coverings or allow employees to voluntarily choose to wear a respirator instead of a face covering. If an employer chooses to provide respirators to its employees, the employer must comply with the OSHA standards for respirators.
Employers have the option of whether they want to pay for the costs associated with COVID-19 testing or face coverings. As OSHA notes, however, employers may still have to pay for face coverings or COVID-19 testing under other federal, state, or local laws or for unionized employees under collective bargaining agreements.
The ETS requires employers to provide time off for employees to get vaccinated and recover from any side effects from the vaccination.
The ETS mandates that employers inform employees of the requirements of the ETS as well as any policies or procedures established by the employer to implement the ETS. Policies and procedures must be communicated in a language and at a literacy level employees understand. According to an FAQ, employers must have written policies that address all applicable requirements, including requirements for COVID-19 vaccinations, exclusions or accommodations, paid time off, etc. OSHA also states that the policy should include the “policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated, etc.), and procedures for compliance and enforcement, all of which are necessary components of an effective plan.”
Employers must also notify employees of:
Employers can make their policies and notices available to employees through their “normal methods of distributing information to employees.”
The ETS requires employers to maintain certain records, including:
This documentation must be treated as “medical records” and preserved while the ETS remains in effect and not disclosed except as authorized by the ETS or other federal law. It is important to note that these documents are not subject to OSHA’s “employee medical records” retention requirement that necessitates keeping records during employment plus 30 years, subject to exceptions.
Employers also do not need to maintain records of employee notifications of a positive COVID‑19 test result or diagnosis, although an employer might need to record that information on an OSHA Form 300, 300A, and 301 (or equivalent form) if the COVID-19 test result or diagnosis is work-related.
Employers will have to report to OSHA:
Employers have three options for reporting work-related fatalities and in-patient hospitalizations to OSHA: (a) by telephone to the OSHA Area Office that is nearest to the site of the incident; (b) by telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1‑800‑321‑6742); or (c) by electronic submission using the reporting application located on OSHA’s public website at www.osha.gov.
OSHA, employees, and employee representatives will have the authority to request records from employers to determine compliance with the ETS.
Employers with unionized workers must still follow the minimum ETS requirements. The ETS, however, does not displace collective bargaining agreements that exceed the requirements of the ETS and does not negate the duty to bargain about the effects of the ETS.
OSHA will use its standard enforcement process for the ETS, including unplanned inspections and citations for noncompliance. Under OSHA rules, noncompliant employers can face fines up to $13,653 for each serious violation and fines up to $136,532 for any willful or repeat violations.
The ETS minimum standards apply equally in states governed by the OSHA standards and states with previously approved “state plans.” In states governed by OSHA standards, the rule became effective immediately upon being published. States with OSHA approved “state plans” (currently about 22 states) have until December 4, 2021, to submit changes to their plans that make them at least as effective as the federal standard. OSHA notes that the ETS will preempt any “state plan” that is not updated by December 4, 2021.
One of the stated purposes of the ETS is to preempt all “inconsistent state and local requirements relating to” standards for vaccinations, vaccination verification, face coverings, and testing requirements in the workplace. According to OSHA, state laws must be updated to be “at least as effective” as the ETS to avoid preemption. Essentially, the ETS requirements are a floor rather than a ceiling. The ETS allows states, localities, and employers to set additional standards that go beyond the ETS.
A number of jurisdictions have passed (e.g., Texas) or are considering issuing (e.g., Florida) laws banning or making it difficult for private employers to require COVID-19 vaccines. Although the ETS explicitly overrules such restrictions, many states are gearing up to challenge the ETS in court. Just a day after release of the ETS, Missouri and 10 other states filed a petition for judicial review in federal court, and more lawsuits are likely to follow from other states and business groups. A group of Republican U.S. Senators also plan to force a vote to block the ETS, but that effort will likely fail with the current Democratic-controlled Congress.
The ETS will undoubtedly cause employers to scramble to meet the rapidly approaching December 5, 2021, and January 4, 2022, deadlines for compliance. Despite the already filed and anticipated additional legal challenges to the ETS, employers will act at their own peril if they wait to see how those lawsuits play out since they may not be successful or reach a resolution before the compliance deadlines.
In the meantime, employers should start preparing for the ETS and the many legal and practical issues they will face with rolling this out. A few items to consider doing now: