Join our November 18 webinar, Complying With New Federal Vaccine Mandates, for an in-depth discussion of the following legal changes and their impacts on businesses.
On November 4, the Occupational Safety and Health Administration (OSHA) released its promised COVID-19 Vaccination Emergency Temporary Standard (ETS) effective immediately upon publication in the Federal Register today (November 5). Employers covered by this standard must implement a mandatory COVID-19 vaccination policy or a policy requiring employees to either get vaccinated or choose to undergo regular testing and wear a face covering. Here is what you need to know and do right now to comply with the ETS:
To Whom the ETS Applies – and Does Not Apply
The ETS applies to all employers with a total of 100 or more employees at any time the ETS is in effect. In determining the number of employees, an employer must include all employees across all of its U.S. locations. Part-time employees do count towards the 100-employee threshold, but independent contractors are not counted.
The determination of whether the employer has 100 employees is initially made as of the effective date of the ETS. Once an employer satisfies the 100-employee threshold, the ETS will apply to the employer for the entire time the ETS is in effect, regardless of
fluctuation in the size of the employer’s workforce. Moreover, if an employer has fewer than 100 employees as of the effective date, but at any time after that exceeds 100 employees, then the employer will be covered for the entire time the ETS is in effect. Thus, an employer can grow into the requirements of the ETS, but cannot shrink out of those requirements.
The ETS addresses a number of different ways employer status can play out:
Single corporate entity with multiple locations: All employees at all locations count toward the 100-employee threshold.
- Two or more related entities: May be regarded as a single employer pursuant to the Occupational Safety and Health (OSH) Act’s test for single-employer status, that is, do the two entities handle safety matters as one company?
- Franchisor/franchisee: Will generally be treated as separate entities for ETS purposes, such that the franchisor would only count "corporate" employees, and each franchisee counts only employees of that individual franchisee.
- Staffing agencies: Where employees of a staffing agency are placed at a "host" or "user" employer, only the staffing agency counts those employees for purposes of the 100-employee
threshold; the host employer could still be covered by the ETS if it has 100 or more employees independent from the number of staffing agency workers on site.
- Multi-employer worksite, such as a construction site: Each employer on the site, such as the general contractor and each subcontractor, only needs to count its own employees; but each employer on the site, of course, must also count its overall number of employees across all locations to assess whether it meets the 100-employee threshold.
The ETS sets forth two exemptions from its requirements:
- Workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors – which issued on September 24, 2021, pursuant to Executive Order 14042 – are not subject to the ETS.
- Workplaces where employees provide healthcare services or healthcare support subject to the requirements of OSHA’s Healthcare ETS issued in May 2021.
Even where the ETS applies to an employer, there are three categories of employees exempted from its requirements. The ETS does not apply to employees:
- Who work at a workplace where no other individuals are present: This exemption contemplates employees who work in a solitary location where only one person (the employee) is present at a time; for example, a research station.
- While working from home: This exemption applies to employees who work from their home, but it applies to employees only while they are working from home. An employee who alternates between working from home and working in a location where other people are present (like an office) are covered by the ETS and subject to its requirements.
- Who work exclusively outdoors: The emphasis here is on "exclusively." The regulations explain that employees who work outdoors on some days, but indoors on other days, would not meet this exemption. Moreover,
employees who work predominantly outdoors, but whose outdoor time is interrupted by indoor time – such as time in a construction trailer or time spent riding with others in work vehicles – will not meet this exemption. De minimis indoor visits, however, such as use of a restroom or brief visit in an administrative office, will not destroy the exemption for working exclusively outdoors.
Requirements of the ETS
1. Mandatory COVID-19 Vaccination Policy
First, covered employers must develop, implement, and enforce a written, mandatory COVID-19 vaccination policy, unless the employer adopts an alternative written policy allowing an employee to choose between becoming fully vaccinated or providing regular proof of COVID-19 testing and wearing a face covering at the workplace (discussed below).
To meet the definition of a "mandatory vaccination policy," the policy must require vaccination of all employees, including all new employees as soon as practicable, other than those employees: (a) for whom a vaccine is medically contraindicated; (b) for whom medical necessity requires a delay in vaccination; or (c) those who are 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.
2. Determining Employee
Vaccination Status and Recordkeeping
For effective implementation and enforcement of a written vaccination policy, a covered employer must be aware of each employee’s vaccination status. Employers are required to determine the vaccination status of each employee, maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination, and maintain a roster of each employee’s vaccination status. Acceptable proof of vaccination status includes: (a) the immunization record from a healthcare provider or pharmacy, (b) a copy of the CDC Vaccination Record Card (a digital photo suffices), (c) a copy of medical records documenting the
vaccination, or (d) a copy of any other official documentation that contains the type of vaccine administered, date(s) administrated, and the name of the professional or clinic site who administered. In instances where an employee is unable to produce the above items of acceptable proof, a signed and dated statement or attestation of the employee will be acceptable. If no acceptable proof of vaccination whatsoever is produced, the employer is to assume the employee is unvaccinated.
Employers who ascertained vaccination status of employees prior to the effective date of the ETS, and who retained records of that vaccination status, are not required to repeat that process –
but only as to employees whose fully vaccinated status was documented prior to the ETS. Employers must observe these requirements for employees unvaccinated as of the effective date of the ETS.
3. Employer Support Requirements
The ETS also requires covered employers to provide COVID-19 vaccination support to employees in the form of: (a) paid time for vaccination – a reasonable amount of time to each employee for each of their primary series dose(s) and up to four hours paid time, including travel time, at the employee’s regular rate of pay;
and (b) time for recovery – a reasonable time and paid sick leave to recover from side effects experienced following any primary vaccinations series dose to each employee for each dose.
4. COVID-19 Testing for Employees Not Fully Vaccinated
Covered employers must ensure that each employee who is not fully vaccinated and reports at least once every seven days to a workplace where other individuals are present: (a) is tested for COVID-19 at least once every seven days; and (b) provides documentation of the most recent
COVID-19 test result to the employer no later than the seventh day following the date on which the employee last provided a test result. Employees who do not report to the workplace during a period of seven days or more – for example, an employee who works from home for two weeks, then wants to come to the workplace for a day: (a) must be tested for COVID-19 within seven days prior to appearing at the workplace; and (b) must provide documentation of that test result to the employer upon appearance at the workplace.
The employer’s written policy must specify how testing will be conducted (e.g., testing provided at the
workplace, employees independently scheduling tests at point-of-care locations, etc.) and how employees should provide their test results to the employer (e.g., an online portal, hand to the human resources department). The ETS does not require the employer to pay for COVID-19 testing or masks for employees who choose the "test and face covering" option; the employer may choose to place the expense of testing and mask wearing on the employee absent a state law or labor agreement providing otherwise (Ohio has none). If an employee fails to provide documentation of a COVID-19 test result as required by the ETS, the employer must keep the employee removed from the workplace.
5. Positive Test Results and Removal From the Workplace
Without regard to COVID-19 vaccination status, the employer’s policy must require each employee to notify the employer promptly of any positive COVID-19 test result or diagnosis of COVID-19 by a licensed healthcare provider. When an employer is notified that an employee has a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must remove that employee from the workplace, followed by a quarantine and return to the workplace after all return criteria are met.
6. Face Coverings
Employers must 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. The mask requirement may be excused in certain circumstances: when an employee is alone in a room with floor-to-ceiling walls and a closed door; for brief periods when the employee is eating or drinking in the workplace or for identification purposes pursuant to security requirements; when an employee is wearing a respirator or facemask; and where the employer can show that use of
face coverings is infeasible or creates a greater hazard.
7. Additional Requirements
The ETS imposes other additional requirements on covered employers, including: (a) providing employees information about the requirements of the ETS and written workplace policies, along with information about protections against retaliation and discrimination and about laws that provide for criminal penalties for knowingly supplying false statements or documentation; (b) reporting work-related COVID-19 fatalities to OSHA within eight hours of learning of them and work-related
COVID-19 in-patient hospitalizations within 24 hours; and (c) providing certain records and information, as detailed in the ETS, to employees, employee representatives, and OSHA representatives, in timeframes as short as four hours.
Effective Date, Compliance Deadlines, and Expiration Date
The ETS will take immediate effect once it is published in the Federal Register on Friday, November 5, 2021, at least in the 29 states where federal OSHA has jurisdiction (including Ohio). However, the OSH Act authorizes states to establish their own
occupational safety and health plans, which are approved by OSHA if those standards are "at least as effective" as the OSHA standards. These remaining states (including California, Tennessee, Kentucky, etc.) will have 15 to 30 days to either adopt the ETS or to adopt their own standards that are at least as effective.
For Ohio and other states similarly situated, the first compliance deadline for covered employers is December 5, 2021. By that date, covered employers must begin to provide time off for workers to get inoculated and to recover, and to ensure those who are not vaccinated are wearing face coverings. The next critical deadline is January 4,
2022. By that date all workers must be "primary vaccinated" or submit to the employer’s written weekly testing policy.
As an emergency temporary standard, the ETS will be in effect for six months. Following that six-month period, OSHA may replace it with a permanent standard.
What Employers Should Be Doing Now
While legal challenges to the ETS have already been filed and more are on the way, for now, employers covered by the ETS should begin preparing immediately to comply
with the new requirements.
Initially, employers should assess whether they meet the 100-employee threshold to be covered by the ETS. While that threshold sounds rather simple – count all your employees, full time and part time across all U.S. locations – there are inevitably permutations and combinations of workers and entities that prove more challenging.
Secondly, covered employers should begin developing, as soon as possible, the comprehensive written vaccination policy required by the ETS. Such a policy should address the multiple items required by the ETS, as detailed above. Drafting
that policy will require a number of decisions, including whether to allow unvaccinated employees the option of weekly testing and mask wearing in lieu of becoming fully vaccinated. Another decision will be the possible penalties for noncompliance, up to and including termination. Moreover, even employers who previously ascertained vaccination status of employees should review the recordkeeping requirements of the ETS to make sure they are properly maintaining those records, develop the roster of employee vaccination status, and ensure that the required records can be produced in the short timeline OSHA requires.
Thirdly, employers should begin preparing for how they will process employee
requests for reasonable accommodation based on disability or sincerely held religious belief. Employers should designate an HR professional and/or other senior management representative to address requests for accommodation consistently and in compliance with applicable law.
Next, employers should start the process of communicating with their employees. Initially, employers should communicate with their employees about their vaccination status and providing "acceptable proof" of such status. Gauging how many employees are already vaccinated and employees’ sentiments regarding vaccination and proof of vaccination will help employers prepare to comply with the ETS.
Employers should begin locating and preparing the different notices to employees required by the ETS. Those notices include a communication to inform employees – in a language and at a literacy level each employee understands – about the ETS requirements and the employer’s written vaccination policy. Employers are also required to provide each employee with the "Key Things to Know About COVID-19 Vaccines" document available on the CDC website. Employers may also want to consider communicating with employees about where they can go to obtain a vaccination if they have not already done so, or how to find a convenient location to do so.
Employers with employees who are represented by a union should consider whether they are obligated to bargain with the union over the mandatory COVID-19 vaccination policy. The policy required by the ETS is a mandatory subject of bargaining under the National Labor Relations Act, so, subject to some exceptions, employers should begin discussions with affected unions soon.
Finally, employers should also train managers and supervisors on how to respond to employee questions and concerns regarding the employer’s vaccination policy. Employers may also want to consider training these managers and supervisors
as to how to respond to inspections conducted by OSHA to ensure compliance with the law.
Taking these steps now will help employers comply with the ETS in advance of the compliance dates. Please contact us if you have questions or need assistance drafting a written vaccination policy, responding to employee exemption or accommodation requests, developing an effective employee communication strategy, bargaining with a union regarding these OSHA requirements, implementing testing or leave programs related to vaccination, managing employee discipline or retention issues, or any of the myriad issues the new ETS presents.
For further information about federal mandates regarding COVID vaccination of employees, please see our prior First Alerts on these matters:
Original Announcement of ETS: President Biden Announces OSHA Will Issue a Rule Requiring Vaccinations or Weekly Testing for Companies With 100+ Employees (September 10, 2021)
Federal Contractors: New COVID-19 Guidance for Federal Contractors and Subcontractors Requires Employee Vaccination (September 27, 2021)
Healthcare OSHA ETS: OSHA Issues More Limited Emergency Standard for Workplace Coronavirus Protections Than Once Anticipated (June 10, 2021)
You are invited to join our November 18 webinar, Complying With New Federal Vaccine Mandates, for an in-depth discussion of these legal changes and their impacts on businesses.