Paul Peter Nicolai
OSHA Emergency Temporary Standard On COVID-19 Vaccination or Testing for Larger Employers
Updated: Feb 15, 2022
NOTE: The United States Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of this Standard, finding there is cause to believe there are grave statutory and constitutional issues with the Mandate.
OSHA has released its emergency temporary standard related to COVID-19 (ETS). At a high level, ETS requires private employers with 100 or more employees to comply with the following, with some limited exceptions:
Implement a mandatory COVID-19 vaccination policy or a policy allowing unvaccinated employees to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
Determine the vaccination status of each employee and collect and maintain proof of vaccination.
Provide employees up to four hours of paid time to get vaccinated and to recover from any side effects.
Require all unvaccinated employees to be tested weekly (if in the workplace at least once a week) or within seven days before returning to the workplace (if away from the workplace for a week or longer) at no cost to the employer unless required by other laws, regulations, or collective bargaining agreements.
Implement notification protocols for when an employee is diagnosed with or tests positive for COVID-19 and remove those employees from the workplace until cleared to return under applicable guidelines.
Require unvaccinated employees to wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
Retain accurate records of both vaccination status and COVID-19 test results and comply with reporting requirements.
ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide health care services or health care support services when subject to the requirements of the emergency temporary standard issued for the health care industry in June 2021 (Healthcare ETS). ETS requirements do not apply to (i) employees who do not report to a workplace where other individuals are present, (ii) employees while working from home, or (iii) employees who work exclusively outdoors.
Assuming the stay is lifted, employers will have until 4 January 2022 to comply with the testing component and 5 December 2021 for all other requirements.
Although the ETS is effective immediately, it is also a proposal for a final standard.
ETS applies to employers with a total of 100 or more employees at any time the standard is in effect. OSHA says the ETS is proceeding in a “stepwise” fashion because larger employers have the “administrative capacity” to develop, implement, and enforce the standard. In determining the number of employees, all employees in U.S. locations must be included, regardless of the employees’ vaccination status or where the employees perform work. Part-time employees count towards the company total, but independent contractors do not.
For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes. The franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise. In other situations, two or more related entities may be regarded as a single employer for the Occupational Safety and Health Act (OSH Act) purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted. For situations where employees of a staffing agency are placed at a host employer location, only the staffing agency would count jointly employed workers for purposes of the 100-employee threshold given the fact that threshold for coverage is based primarily on administrative capacity for purposes of protecting workers as quickly as possible.
OSHA says determining whether a particular employer is covered by the ETS requirements is distinct from determining whether individual employees are covered by the ETS requirements. Some employers may be covered, but they have no duties with respect to some of their employees. For example, even where the standard applies to a particular employer, its requirements do not apply to employees (i) who do not report to a workplace where other individuals such as coworkers or customers are present, (ii) while working from home, or (iii) who work exclusively outdoors.
OSHA provides an example of a landscaping contractor with at least 100 employees. The landscaping contractor would be a covered employer under the ETS, but the standard’s protections would not apply to any employees that work exclusively outdoors. Alternatively, if all indoor workers work exclusively from home or in locations where no other individuals are present and all outdoor workers work exclusively outdoors, then the landscaping contractor would be a covered employer under the ETS but would not be required to comply with the ETS provisions.
Documentation of Vaccination Status
Regardless of whether a covered employer requires all employees to be vaccinated or elects to permit unvaccinated employees to undergo weekly COVID-19 testing, it must collect and maintain a record of each employee’s vaccination status. The following forms of documentation will satisfy the proof of vaccination status: (i) record of immunization from a health care provider or pharmacy; (ii) a copy of a CDC COVID-19 Vaccination Record Card; (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or (v) 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. When an employee is unable to produce proof of vaccination status in the aforementioned methods, the ETS allows employees to provide an attestation, subject to criminal prosecution.
Mandatory Vaccination Policy
Employers that implement a mandatory vaccination program must provide accommodations under applicable law for employees “(i) for whom a vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) 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.” In its preamble, OSHA says employees who recovered from a COVID-19 infection are not exempt from the vaccination requirement. Employers should be aware that an employee may be able to substantiate a request for an accommodation if sufficient documentation from a physician notes the inability to receive a vaccine.
Administration of COVID-19 Testing Program
Employers that do not require all employees to be vaccinated must require all unvaccinated employees to undergo COVID-19 testing at least weekly. Employees who are present in the workplace at least one day a week must be tested once every seven days and provide a negative COVID-19 test result no later than the seventh day following the date the employee last provided a test result.
Given the flexible work schedules of many employees, employers must also ensure employees who are not fully vaccinated and do not report to the workplace during a period of seven days or more are: (i) tested for COVID-19 within seven days before returning to the workplace, and (ii) provide documentation of that test result upon return to the workplace.
The ETS specifies the types of COVID-19 tests an employer may use in satisfying the testing obligation. Specifically, the following tests are acceptable for use under the ETS: any COVID-19 test that is “(i) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA) by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (ii) administered in accordance with the authorized instructions; and (iii) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” In requiring that a COVID-19 test used by an employee must have a level of review, the ETS addresses concerns about unreliable test results.
Employees who fail to present documentation of a COVID-19 test result must be prohibited from entering the workplace until a test result is produced. Employees diagnosed with COVID-19 are not required to undergo testing for 90 days following the diagnosis.
Employers that offer a testing option are not required to cover the cost of testing under the ETS. With respect to the cost burden on covered employers, OSHA has determined that for purposes of this ETS, it would not be “appropriate” to impose on employers any costs associated with COVID-19 testing for employees who choose not to be vaccinated.
For most of the agency’s existing standards containing medical testing and removal provisions, OSHA has found it necessary to impose the costs of such provisions on employers in order to remove barriers to employee participation in medical examinations that are critical to effectuating the standards’ safety and health protections. Here, OSHA has determined that the safety and health protections of the ETS are best effectuated by employee vaccination, not testing. Accordingly, OSHA only requires employers to bear the costs of employee compliance with the preferred, and more protective, vaccination provision, but not costs associated with testing. Moreover, OSHA has also determined that it is not appropriate to require employers to pay for face coverings for employees who choose not to be vaccinated.
However, covered employers may be required to cover the cost of testing by other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. For example, a reasonable interpretation of the Americans with Disabilities Act, and other anti-discrimination laws is to require, if the no vaccination status is an approved accommodation under the law, that the employer pay for the testing. Employers may, however, require employees to go to locations where testing is free or covered by insurance. Finally, under current guidance from the DOL, nonexempt employees likely should be compensated for any time spent for the administration of a COVID-19 test.
Face Covering Requirement
Covered employers must require all employees not fully vaccinated to wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in limited circumstances.
An unvaccinated employee does not have to wear a face covering: “(i) when alone in a room with floor to ceiling walls and a closed door; (ii) for a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements; (iii) when employees are wearing respirators or face masks; or (iv) where the employer can show that the use of face coverings is infeasible or creates a greater hazard.”
The ETS broadly defines “face coverings” to include various different types of masks, such as clear face coverings or cloth face coverings with a clear plastic panel that may be used to facilitate communication with individuals who have disabilities or other limitations. Unless required under other federal, state, or local laws, employers are not required to cover the cost of a face covering for employees who elect not to be vaccinated.
Employee Notification and Removal from the Workplace
Similar to requirements under the Healthcare ETS, the ETS contains COVID-19 notification requirements for both the employer and the employee. Under this provision, the employer must require each employee, regardless of vaccination status, to promptly notify the employer if they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed health care provider. Employees diagnosed with or test positive for COVID-19 must be removed from the workplace immediately. Such employees are not permitted to return to the workplace until the employee “(i) 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 a NAAT test for confirmatory testing; (ii) meets the return-to-work criteria in CDC’s “Isolation Guidance”; or (iii) receives a recommendation to return to work from a licensed healthcare provider.” Unlike the Healthcare ETS, the ETS does not require employers to provide paid leave to employees who must be removed from the workplace due to a COVID-19 diagnosis or positive test result. Other federal, state, or local laws may provide such an entitlement.
ETS also imposes recordkeeping requirements on employers. For employees who are fully vaccinated, OSHA requires employers to maintain a record of vaccination status, a copy of the proof of vaccination and a roster of each employee’s vaccination status. Consistent with current EEOC guidance on vaccination records, both the records and the roster are to be maintained as confidential employee medical records in accordance with applicable law. Employers that have already collected proof of vaccination through another form of attestation or proof, before the effective date, are exempt from collecting documentation again.
Paid Time Off
All covered employers must provide employees with a reasonable amount of time, including up to four hours of paid time off at the employee’s regular rate of pay, to receive each primary vaccination dose(s) against COVID-19. The four hours of paid time off cannot be offset by any other leave that the employee has accrued, like sick leave or vacation leave.
Additionally, covered employers must provide reasonable time and paid sick leave to recover from side effects experienced following any vaccination dose to each employee. Employers may require employees to use paid sick leave benefits otherwise provided by the employer to offset these costs, if available. If the employee does not have available sick leave, leave must be provided for this purpose.
Where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings. Employers nonetheless may be required to pay for testing or face covering costs under other collective bargaining obligations or federal, state, or local laws. Where collective bargaining agreements or federal, state or local laws require employers to provide employees additional paid time off for vaccination or paid sick leave to recover from vaccination side effects, the ETS requirements are satisfied so long as the employer provides each employee (i) reasonable time and four hours of paid time to receive each primary vaccination dose, and (ii) reasonable time and paid sick leave to recover from side effects experienced following a primary vaccination dose.
With the various state and local orders, legislation, and other regulations that address vaccination mandates, specifically those that limit or prohibit such requirements, the ETS specifically provides for preemption of “inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.” OSHA’s authority to preempt inconsistent state or local requirements is derived from section 18 of the OSH Act as well as general principles of conflict preemption.
Further, the ETS requires the 28 states that have elected to implement OSHA-approved occupational safety and health plans to adopt a standard ETS or an ETS that is at least as effective as this ETS within 30 days of the promulgation date of the final federal rule. State plans must notify OSHA of the action they will take within 15 days. OSHA has recently signaled that it intends to enforce this requirement against states who fail to adopt an appropriate standard.
Federal Contractor Mandate and Centers for Medicaid and Medicare Services Mandate
The ETS does not apply to workplaces covered by the federal contractor mandate. That is not a wholesale exemption for employers subject to the contractor mandate. It only exempts a covered workplace, not the entire employer workforce. Employers with only a segment of their workforce subject to a federal contractor mandate may still be subject to the ETS with for other employees if employing 100 or more employees. Although the ETS does not specifically exempt health care entities that may be subject to the Centers for Medicaid and Medicare Services Interim Final Rule on vaccinations, if such health care facilities are subject to the Healthcare ETS, they would not be expected to comply so long as the Healthcare ETS is in effect. If the Healthcare ETS is no longer in effect at any point while the ETS is in effect, some employees working in settings that were covered by the Healthcare ETS may become covered by this ETS.
Legal and Practical Considerations
Employers should evaluate coverage of their workforce based on the 100-employee threshold in the ETS. Any employer that may be required to comply must identify its plan for compliance, either to implement a mandatory vaccination program or a COVID-19 testing protocol for its unvaccinated employees. Since determining the vaccination status of all employees will be required regardless of the type of program implemented, covered employers should ascertain, to the extent they have not done so, the vaccination status of employees and maintain records in accordance with the ETS.
Although the ETS does not require the employer to bear any costs associated with COVID-19 testing, employers should understand other laws, especially state or local regulations, which may require an employer to shoulder the cost of medical tests or reimburse the employee for such a requirement. Additionally, employers likely will continue to bear the cost of COVID-19 testing for employees that receive an accommodation on the basis of a medical condition or sincerely held religious belief from a mandatory vaccination program. Although unionized employers must comply with the ETS, they should engage with union representation to facilitate the development and implementation of a compliance program in accordance with the ETS.