The Occupational Health and Safety Administration (OSHA) issued an Emergency Temporary Standard (ETS) on November 5, 2021, requiring, among other things, that employers with 100 or more employees institute certain mandatory COVID-19 vaccination or testing policies. Pursuant to the ETS, all the of requirements except for the testing requirements would take effect on December 5, 2021, and the testing requirements would take effect January 4, 2022.
On November 6th the ETS was stayed by the Fifth Circuit Court of Appeals pursuant to an emergency motion and on November 12th, that same court affirmed the earlier decision and extended the stay of the ETS pending more complete judicial review. In a statement posted on its COVID-19 and Vaccine Emergency Temporary Standard web page, OSHA acknowledged the issuance of the injunction and indicated that it has “suspended activities related to implementation and enforcement of the ETS pending future developments in the litigation.”
Whether or not the requirements of the ETS will actually take effect in December (or at all) is uncertain at this time. The following is an overview of the requirements of the ETS to prepare for the event that the ETS requirements do take effect. Employers should monitor the legal developments and be prepared to implement the required policies of the OSHA ETS if upheld.
What employers are covered by the ETS?
The ETS generally applies to employers with 100 or more employees with limited exceptions. For the purpose of determining the number of employees a particular employer has, all employees across all U.S. locations, regardless of vaccination status, full-time or part-time status, and whether they work remotely or go into a physical workplace, must be included.
What are the key ETS requirements for covered employers?
- Mandatory Vaccination or Weekly Testing Policy:
Employers are required to adopt and implement a written COVID-19 policy requiring all employees to be fully vaccinated as soon as practical or requiring employees who elect to remain unvaccinated to undergo weekly COVID-19 testing and to wear face coverings at the workplace. The ETS strongly encourages employers to adopt a mandatory vaccination policy excepting only employees who have medical conditions which would make the vaccine medically inadvisable or who are legally entitled to reasonable accommodation under federal and state laws because of a disability or sincerely held religious belief.
- Records of Employee Vaccination Status:
Employers must determine the vaccination status of all employees and maintain a roster of each employee’s vaccination status. Employer’s must verify which employees are fully vaccinated by obtaining proof of vaccination. If proof is not obtained, the employee’s status must be designated as unvaccinated. An employee is “fully vaccinated” under the ETS two weeks after the full required vaccine course is completed.
Employers must maintain records and have available to authorized individuals (and OSHA) each employee’s vaccination documentation and any testing results. In addition, employers must keep an updated record of the total number of fully vaccinated employees and the total number of employees in the workplace and make that aggregate information available to authorized individuals and OSHA.
Employee vaccination and testing records are considered employee medical records. Therefore, the records must be maintained as confidential records and must not be disclosed except as required or authorized by law.
- Paid Time Off for Vaccination:
Employers must provide employees up to four hours of paid time off as needed to receive each vaccination dosage. In addition, employers must provide reasonable paid sick leave in the event that an employee experiences side effects from the vaccination. Paid time off for experiencing side effects may come from accrued paid sick leave benefits otherwise provided by the employer if available.
- Information Provided to Employees:
Employers must provide to all employees:
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- the requirements of the ETS and the policies implemented by the employer to comply with the ETS;
- information regarding protections provided by law against retaliation and discrimination;
- information regarding laws with criminal penalties for knowingly providing false information, statements, or documentation; and
- the CDC document “Key Things to Know About COVID-19 Vaccines.”
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The information in each of these four categories must be provided in a language and at a literacy level that each employee would understand.
- Mandatory Testing for Unvaccinated Employees:
Employers must ensure that all employees who are not fully vaccinated or have not provided proof of full vaccination complete regular approved COVID-19 testing. Any employee who is physically in the workplace at least once a week must be tested for COVID-19 at least once a week. If an employee is away from the workplace for longer than a week, they must be tested within 7 days before returning to work.
Employers must ensure employees who are required to undergo COVID-19 testing use COVID-19 tests that are cleared, approved, or authorized, including in an Emergency Use Authorization, by the U.S. Food and Drug Administration to detect current infection with the SARS-CoV-2 virus. Tests must be administered in accordance with the authorized instructions and cannot be both self-administered and self-read unless supervised by the employer or an authorized telehealth proctor.
- Face Coverings:
Employers must ensure that any employees who have not provided proof of full vaccination wear approved face coverings when indoors and when in a vehicle with another person for work purposes with the following exceptions: the employee need not wear a face covering while alone in a room with floor to ceiling walls and a closed door or if the employer can demonstrate the use of face coverings would create a greater hazard. In addition, employees may remove face coverings for a limited time while eating or drinking or for identification purposes. Employers are prohibited from preventing any employee from voluntarily wearing a face covering unless it would pose a serious workplace hazard.
Face coverings must cover and fit snugly over the nose, mouth, and chin and have no holes. Fabric masks must be made with two or more layers of solid breathable fabric that is tightly woven. Clear face coverings or face coverings with clear plastic panels, which facilitate communication with people who are deaf or hard-of-hearing, may also be used.
- Employee Reporting and Removal.
Employers must mandate that all employees provide notice promptly in the event they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. If such notice is provided, the employer must immediately remove the employee from the workplace and keep the employee removed until they have met CDC return to work criteria. The employee may return to work after receiving a positive COVID-19 test when they meet three criteria or the employee receives a return-to-work recommendation from a licensed healthcare provider. An employee can return to work pursuant to the three criteria when:
1) at least ten days has passed since the first appearance of the person’s symptoms;
2) the person has gone at least 24 hours without a fever; and
3) the person’s other symptoms are improving.
- Employer Reporting of Fatalities and Hospitalizations:
Employers must report to OSHA any work-related COVID-19 fatalities within eight hours of learning of it. Employers must report to OSHA any work-related COVID-19 in-patient hospitalizations within 24 hours of learning of it.
Is the employer required to pay the costs of testing?
Under the ETS, employers are not required to cover the costs of testing. However, Maine law requires employers to pay the cost of testing. In addition, other laws, regulations, collective bargaining agreements, or other collectively negotiated agreement may require employers to pay those costs.
Are any employees exempted from these requirements?
Yes. There are three situations in which employees who would otherwise be covered by the ETS requirements are exempt. Employees are exempt who (1) report to a workplace where there are no other individuals present; (2) work remotely from home; or (3) perform their work exclusively outdoors.
The foregoing is only a summary of key provisions of the OSHA ETS. Please consult with your relationship attorney at Perkins Thompson if you have questions or need assistance in addressing the OSHA ETS. You may contact William J. Sheils or Katherine C. Skinner in our Employment Law practice group directly with any questions.