On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring employers with 100 or more employees to ensure unvaccinated employees: either get vaccinated for COVID-19 or begin weekly testing by January 4, 2022; and, by December 6, 2021, must wear a mask while in the workplace or in a work vehicle with another person.
Immediately following its issuance, the ETS has been subject to legal challenge. Although the ETS was initially stayed by the 5th Circuit Court of Appeals, on December 17, 2021, the 6th Circuit Court of Appeals lifted that stay, resulting in the ETS becoming immediately effective. The 6th Circuit’s ruling was quickly appealed on an emergent basis to the U.S. Supreme Court, and we are presently awaiting a decision by the Court as to whether it will accept the appeal and issue a final determination on the ETS or, alternatively, deny the appeal and permit the 6th Circuit’s ruling to stand.
While the legal process continues, on December 17, 2021, in response to the 6th Circuit’s ruling, OSHA issued a statement with respect to its enforcement of the ETS: "To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance."
As such, employers with 100 or more employees must resume (or quickly begin) efforts to comply with the many requirements of OSHA’s ETS.
The ETS applies to all private employers with 100 or more total employees at any time the ETS is in effect (from November 5, 2021 until the ETS expires at a presently unspecified time in the future). The 100-employee threshold is based on a company-wide count, and not the number of employees in a particular state or at a particular worksite.
Employers must count all full-time, part-time, temporary and seasonal workers (whether working on site or remotely). Independent contractors and leased employees (where the employer is not the employer of record) are not to be counted. Although included in the total employee count, the ETS does not apply to employees who work remotely or employees who work exclusively outdoors.
The ETS does not apply to workplaces that are covered by the federal contractor vaccination requirement or the vaccination directive from the Centers for Medicare & Medicaid Services for health care workers at facilities that participate in Medicare and Medicaid programs.
Summary of Requirements
The ETS is 18 pages in length, and the preamble to the ETS is over 400 pages in length. OSHA also issued over 50 FAQs. Each of those documents details the specific requirements of the ETS. The following is a summary of key action items that employers must take to ensure compliance with the ETS:
- Survey Employees’ Vaccination Status, and Prepare and Keep Records: By December 6, 2021, employers are required to conduct a survey of each employee in the workplace to determine his/her non-vaccinated, partially, or fully vaccinated status (including those who are not fully vaccinated because of a medical or religious accommodation), and must obtain from the employee “acceptable proof of vaccination.” Acceptable proof of vaccination status includes:
- The record of immunization from a health care provider or pharmacy.
- A copy of the COVID-19 Vaccination Record Card.
- A copy of medical records documenting the vaccination.
- A copy of 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(s) or clinic site(s) administering the vaccine(s).
- A signed and dated employee attestation (in instances when an employee is unable to produce proof of vaccination).
These records are medical records and must be maintained confidentially within the employee’s medical file maintained by the employer. Employers must also keep confidential records of weekly testing results if the employee adopts the testing policy.
- Adopt a Policy: Per the ETS, employees must be fully vaccinated by January 4, 2022. Employers have two options:
- Adopt a policy that mandates that all employees in the workplace be vaccinated for COVID-19 by January 4, 2022. The policy must apply to all employees apart from those (1) for whom a vaccine is medically contraindicated, (2) those for whom medical necessity requires a delay in vaccination, or (3) those entitled to a reasonable accommodation because they have a disability or sincerely held religious belief that conflicts with the vaccination requirement. The employer must participate in an interactive process to determine if a reasonable accommodation can be made if the employee has a medical or religious exemption; or
- Adopt a policy that permits employees who are not fully vaccinated to undergo weekly COVID-19 testing starting January 4, 2022 and wear a face-covering in the workplace and any work vehicle while with another person (a December 6, 2021 mandate). Testing would not be required until after January 4, 2022, once employers know which of their employees are not fully vaccinated. The employer is not required per the ETS to pay for the cost of the testing (unless otherwise required by a collective bargaining agreement or state law). For employers that elect the testing option for unvaccinated workers, the time spent obtaining a COVID-19 test may be considered hours worked depending on the circumstances.
- Provide Employees with Required Written Notices: By December 6, 2021, employers must provide employees with the following: (1) information about the ETS and the employer’s policy implementing the ETS; (2) the CDC document “Key Things to Know about COVID-19 Vaccines”; (3) information on protection against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. The USDOL makes items 3 and 4 above available on its website at no charge.
- Provide Reasonable Time Off: Beginning December 6, 2021, employers are required to provide employees up to 4 hours of paid time off in order to receive a COVID-19 vaccine shot. An employee cannot be charged their available paid sick time; rather the 4 hours of paid time off must be an additional leave benefit. If an employee has a side effect from the vaccine, then the employer must permit the employee to take up to 2 days of paid leave, which can be charged against the employee’s available paid sick time. If, however, the employee does not have any available paid sick time, then the employer must nonetheless permit the employee up to 2 days of paid leave (which would be an additional benefit). Additionally, state COVID-19-related laws might also require additional paid leave for time to get or recover from the vaccine.
- Promptly Remove Any Employee Diagnosed with COVID-19: The ETS requires that employers establish procedures for employees to promptly report a positive COVID-19 test or positive COVID-19 diagnosis to the employer. Upon such notice, employees must be immediately removed from the workplace until the return-to-work criteria determined by the CDC is met.
- Produce Records Upon Request:The ETS requires employers to make available to an employee for examination and copying, that employee’s COVID-19 vaccine documentation and any COVID-19 test results, and to make such records available 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. Also, work-related COVID-19 fatalities must be reported to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations must be reported within 24 hours.
Understanding how many unvaccinated workers your organization has will help inform the best compliance approach. OSHA does provide template policies that meet the requirements of the ETS that can be customized. Those policies and other helpful resources are available on the OSHA website.
Employers are well-advised to (a) proceed with plans to comply with the ETS by January 10, 2022, and (b) begin weekly testing of unvaccinated employees not later than February 9, 2022, to avoid any OSHA citation, which could carry monetary penalties of almost $14,000 for “serious” and “other than serious” citations, and $140,000 for “willful” citations.
Please contact our team of employment law attorneys for assistance meeting the ETS requirements, including developing a compliant policy.