OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) is here, and employers have only about 30 days to start complying. On November 4, 2021, in response to President Biden’s call for an emergency standard (see our prior blog here), OSHA issued the ETS. As expected, the rule requires employers with 100 or more employees to ensure employees are either vaccinated or test weekly for COVID-19 .
Covered employers need to move quickly. First, by December 5th, 2021, employers must comply with several requirements under the ETS, such as providing paid time for employees to get vaccinated and requiring masks for unvaccinated workers in the workplace.
Next, covered employers must decide whether they will mandate vaccination for all employees or instead allow employees to test weekly in lieu of vaccination. Employers who mandate vaccination must require employees to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. Note that, in a departure from most existing vaccine mandates, employees do not have to be “fully vaccinated” by this deadline, and they just have to have had all required shots. Employers who elect testing or vaccination must ensure that employees who have not received the necessary doses begin providing a verified negative COVID-19 test on at least a weekly basis after January 4.
Here’s what employers need to know now.
Require vaccines, or test and mask. The ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy-unless employers instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. If an employer implements a mandatory vaccination policy, the policy must require vaccination of all employees except those who have a medical contraindication to vaccination, those for whom a vaccine must be delayed out of medical necessity, or those legally entitled to a reasonable accommodation because they have a disability or a sincerely held religious belief, practice, or observance conflicting with the vaccination requirement. Employees who are granted reasonable accommodations do not have to be permitted to work onsite while masked, as other accommodations such as remote work may exist, but employers can choose to allow them to do so. Employers must ensure each of their workers are fully vaccinated or tested for COVID-19 on at least a weekly basis, and those who aren’t vaccinated must wear face coverings while indoors.
Important: “action item” dates. The December 5 and January 4 deadlines noted above are calculated based on the expected publication of the ETS in the Federal Register on November 5. According to the ETS, employers must ensure all requirements other than testing (such as paying for time off for testing and requiring masks) for employees who have not completed their entire primary vaccination dose(s) are addressed within 30 days from publication–which would be December 5 if the ETS is published on November 5. The ETS also requires that weekly testing for employees who have not received all doses required for a primary vaccination begins by 60 days after publication (January 4, 2022, if the ETS is published on November 5). If the ETS is not published in the Federal Register on November 5, these dates will change accordingly.
Full vaccine dosage is required by January 4—and the federal contractor vaccination deadline could be extended. Employees will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. According to the White House Fact Sheet, the prior federal contractor vaccination deadline of December 8 (which we blogged about here) will be extended to match the ETS vaccination deadline to make it easier for all employers to comply with the requirements.
The ETS does not apply to some employees, including employees working from home. The ETS does not apply to employees who do not report to a workplace where other individuals (such as coworkers or customers) are present, employees while they are working from home, or employees who work exclusively outdoors. It also does not apply to workplaces covered by the Safer Federal Workforce Task Force Guidance for Federal Contractors and Subcontractors (which we blogged about here), or workers covered by the new Centers for Medicare & Medicaid Services (CMS) vaccination rule (see below).
Unvaccinated employees must produce test results weekly. After the January 4, 2022 vaccination deadline, employers must ensure that employees who have not received the necessary doses provide their employers with a verified negative COVID-19 test on at least a weekly basis (if the employee is in the workplace at least one a week), or within 7 days before returning to work (if the employee is away from the workplace for a week or longer).
And unvaccinated employees must wear masks indoors. In addition, beginning December 5, covered employers must ensure that all unvaccinated workers wear a mask when indoors or when occupying a vehicle with another person for work purposes (except in certain limited circumstances). And employers cannot prevent employees, regardless of vaccination status, from choosing to wear a face covering unless it creates a serious workplace hazard (such as interfering with the safe operation of equipment). In a bit of a surprising move, the ETS does not require fully vaccinated employees to wear masks indoors, even in areas of substantial or high transmission of the disease.
Employers aren’t required to pay for (some) tests under the ETS. While it was widely reported last week that the ETS would authorize employers to require employees to pay for elective testing, OSHA has punted on the issue, stating that the ETS does not specify who must pay for testing. This means that the ETS does not require employers to provide or pay for tests, but employers may be required to pay for testing under other applicable laws or regulations, or collective bargaining agreements. Nothing prohibits employers from voluntarily paying for tests.
But employers must provide paid time for vaccination / side effects. Beginning December 5, covered employers must provide “reasonable time” to employees, including up to four hours of paid time, to receive each vaccination dose, and “reasonable time” and paid sick leave to recover from side effects following each dose.
Employers must determine employees’ vaccination status. The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. The ETS and FAQs (yes! there are already FAQs!) provide additional specific information.
Positive test? Remove the employee. The ETS requires employers to mandate that employees promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19. Employers must immediately remove any employee from the workplace who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider (regardless of vaccination status), and must keep removed employees away from the workplace until they meet criteria for returning to work. Employers do not have to pay employees who are excluded under the ETS, but must allow such employees to use existing leave benefits, such as vacation or sick leave.
Employers must report fatalities and hospitalizations to OSHA. The ETS requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
Employers must provide information about the ETS and COVID-19 to employees. Employers must provide (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation to employees. This information must be provided in a language and at a literacy level the employees understand.
Employers must make records available to employees. Under the ETS, employers must make an employee’s COVID-19 vaccine documentation and any COVID-19 test results available for examination and copying to the employee (and to anyone having written authorized consent). Employers also must 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.
Preemption? Similar to the Safer Federal Workforce Task Force vaccine guidance for federal contractors and subcontractors, which stated its requirements “supersede any contrary State or local law or ordinance,” OSHA states that the new rule preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing. We expect this to be litigated.
Streamlining for some employers. The ETS will not apply to workplaces covered by either a rule announced on November 4 by the Centers for Medicare & Medicaid Services (CMS) requiring that health care workers at facilities participating in Medicare and Medicaid be fully vaccinated by January 4, 2022, or by the Safer Federal Workforce Task Force Guidance. According to the White House Fact Sheet, this will keep employers from having to track multiple vaccination requirements for the same employees.
Those FAQs! Covered employers should review OSHA’s robust, practical FAQs, which answer questions such as whether employees who are working from home count towards the 100-employee minimum (yes); which vaccines are acceptable under the standard (those approved by the FDA, WHO, or administered in a US clinical trial); whether an unvaccinated employee who wears a face mask and is isolated on site can come to the workplace without producing test results (no); and what State Plans’ obligations are with respect to the ETS (adopt the ETS or an ETS that is at least as effective within 30 days of the promulgation date of the final federal rule–and notify OSHA within 15 days of which action they will take). OSHA has also provided a summary sheet of the ETS.
What should employers do now?
Covered employers should consult with counsel as they determine what changes they must or should make to comply with the ETS. Though we expect litigation–twenty-four state Attorneys General reportedly threatened to sue after Biden issued the mandate leading to the ETS on September 9–at this time, covered employers will be required to comply. As always, contact your Baker McKenzie employment attorney for assistance navigating the OSHA ETS and for your other employment needs.