On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a new emergency temporary standard (ETS) that requires employers with 100 or more employees to ensure that their employees are either fully vaccinated or subject to COVID-19 testing at least once per week. The ETS will be published in the Federal Register on November 5, 2021, and goes into effect on December 5, 2021. The ETS will cover approximately 84 million employees.
The ETS requires employers to implement a written mandatory vaccination policy. Employers are exempted from this requirement only if they implement and enforce a written policy requiring all employees to be fully vaccinated or to undergo testing at least weekly and to wear face coverings. Employees must be fully vaccinated on or before January 4, 2022. If employers decide to permit testing for unvaccinated workers, the requirement to test begins on that same day.
The ETS will remain in effect for six months, or until May 5, 2022. Pursuant to the Occupational Safety and Health (OSH) Act, the ETS becomes the proposal for a permanent standard. If no permanent standard is enacted before May 5, 2022, the ETS expires. Comments on whether the ETS should become a permanent standard are due on December 5, 2021.
OSHA describes the purpose of the ETS as establishing “minimum” vaccination, testing, and face covering requirements to “address the grave danger of COVID-19 in the workplace.” The ETS is also intended to “preempt 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 states that the ETS is a floor, not a ceiling, and establishes minimum requirements. “Nothing in this section prevents employers from agreeing with workers and their representatives to additional measures,” and “does not supplant collective bargaining agreements”
Which employers are required to comply?
The ETS applies to employers with 100 or more employees with three important exceptions:
- Workplaces or settings where compliance with OSHA’s healthcare ETS is required;
- Federal contractors covered by the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- Employees who would otherwise be covered, but “do not report to a workplace where … coworkers or customers are present,” employees who are working from home, or employees who “work exclusively outdoors”;
The ETS applies to employers with a total of 100 or more employees at any time the ETS is in effect.
What proof of vaccination is required and how must covered employers track this information?
Employers are required to determine the vaccination status of each employee. Acceptable proof of vaccination status includes a vaccine card, records from a pharmacy or health care provider, or “any other official document” that includes the dates and type of vaccination and the place the employee received the vaccine. If an employee is unable to produce this type of record, an attestation in which the employee acknowledges the following is acceptable: vaccination status (e.g., full or partial); if possible, information regarding the type of vaccine, dates of administrations and who provided the vaccine; and a statement that the proof of vaccination is lost or cannot be produced. The attestation must include the following language: “I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
Covered employers must maintain a record of each employee’s vaccination status as well as a roster of each employee’s status. These records are “medical records” covered by OSHA’s access to employee exposure and medical records regulation, 29 C.F.R. 1910.1020 and “must not be disclosed except or required or authorized by this section or other federal law.” Employers are typically required to maintain medical records for the duration of employment plus 30 years. The ETS states that this provision does not apply to vaccine records but that employers must retain the records while the ETS is in effect.
When is testing required and who pays for it?
The ETS divides unvaccinated employees into two groups for purposes of testing. First, employees who report to a workplace at least once every seven days must be tested at least once every seven days. Second, employees who are working remotely and occasionally report to a workplace must be tested within seven days of reporting to the workplace. In each case, documentation of the test must be provided to the employer. If an employee does not produce a test or tests positive, the employee is not permitted in the workplace.
The ETS allows employers to require the employee to pay for the cost of testing but notes employers may be required to pay for tests pursuant to state law or a collective bargaining agreement. Employers may voluntarily pay for testing and may require more frequent testing.
The employer must keep a record of each test result. The test results are employee medical records covered by OSHA’s Access to Medical Records standard but must be kept only while the ETS is in effect.
What kinds of tests are acceptable?
At home or over-the-counter tests are permitted, but the test may not be both self-administered and self-read. Compliant tests include “proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.” The employee must present proof of a negative test result in order to report for work. If employees refuse to submit to testing in accordance with their employers’ requirements, they are not permitted to enter the workplace until they get tested.
Is the employer required to give paid time off for vaccination or testing?
The employer must provide up to four hours of paid time off to receive each dose of the vaccine. “[R]easonable time and paid sick leave to recover from side effects” must also be provided. Employees may be required to use existing sick leave to recover from side effects.
Are employees required to report positive tests?
In the written program, the employer must require employees to report positive test results regardless of vaccination status. Employees who test positive must be removed from the workplace. Employees are permitted to return to work only after receiving a negative test result, meeting the Centers for Disease Control and Prevention (CDC) return-to-work criteria, or receiving a recommendation from a health care provider allowing a return to the workplace.
Is paid time off required when an employee tests positive?
Employers are not required to provide paid time off to any employee who is removed from the workplace due to a positive test. The ETS notes that paid time off under these circumstances may be required by a collective bargaining agreement or other law.
When are face coverings required?
Each employee who is not fully vaccinated must wear a face covering while indoors or in a vehicle with a co-worker. “Face covering” is defined as consisting of two or more layers of fabric, secured to the head with straps or ties, covering the nose and mouth, and solid with no slits or holes. “Facemask” is defined separately, and means a surgical or medical mask. The term “respirator” is also defined and expressly excludes face coverings and facemasks.
Face coverings must be worn unless: 1) the employee is alone in a room with floor to ceiling walls with the door closed; 2) for a “limited time” while eating or drinking; 3) when the employee is wearing a respirator or face mask; or 4) if the employer can show that wearing a face covering is infeasible or causes a greater hazard, such as situations when the work requires the employee’s mouth to be uncovered.
Employers must permit employees to wear face coverings or face masks even if the ETS does not require it. The employer must also permit an employee to wear a respirator even if respirator use is not required. In those cases, the employer will have additional compliance obligations under OSHA’s Mini Respiratory Protection Program, 29 C.F.R. 1910.504.
Who must pay for face coverings?
The ETS does not require employers to pay for face coverings but notes that payment may be required by other laws or collective bargaining agreements.
What training is required?
Covered employers must provide employees with the following information:
- The requirements of the ETS and the policies the employer has implemented to comply with the ETS;
- The CDC document entitled “Key Things to Know About COVID-19 Vaccines”;
- The employee’s rights under the whistleblower provision of the OSH Act and section 1904.35(b)(1)(iv) of the recordkeeping regulation, which prohibits retaliation when an employee reports a work-related illness;
- The criminal provisions in the OSH Act and other federal laws; OSHA concludes that these provisions prohibit falsifying a vaccination, testing, or other required record.
When must the employer report fatalities and hospitalizations due to COVID-19 to OSHA?
Any work-related COVID-19 fatality must be reported to OSHA within eight hours of the employer learning of the fatality. Each COVID-19 case that results in in-patient hospitalization must be reported within 24 hours of the employer learning of the hospitalization. The provision requiring the reports of hospitalization is a departure from previous OSHA requirements. Prior to the ETS, OSHA’s recordkeeping regulation required hospitalizations to be reported only if the employee was admitted to the hospital within 24 hours of exposure to the virus. Given how COVID-19 manifests, few hospitalizations were required to be reported because COVID-19 positive individuals are rarely hospitalized within the first 24 hours of exposure to the virus.
What records must be kept?
The employer must maintain and provide the following information upon request:
- An employee or anyone with written authorized consent from the employee is entitled to his or her COVID-19 vaccination records and test results, which the employer must provide by the end of the next business day following the request.
- Within four hours of a request from OSHA, the employer must provide a copy of the written COVID-19 policy requiring vaccination or requiring vaccination and testing and vaccination and testing records for each employee.
- Any other written records required by the ETS must be produced to OSHA by the end of the next business day following the request.
Does the ETS preempt state law?
OSHA states that the ETS preempts state and local laws prohibiting vaccine/testing mandates or face covering requirements. An employer can comply with both the ETS and state laws prohibiting vaccination mandates by allowing testing for unvaccinated workers. However, as OSHA explains in the rulemaking record, prohibiting vaccine mandates frustrates the overall regulatory scheme OSHA seeks to put in place by depriving employers of the ability to mandate vaccines for all or certain groups of employees.
States with state OSHA plans approved by federal OSHA may adopt standards that differ from the federal ETS, but those state standards must be “as effective as” the federal ETS. Federal OSHA may find that state OSHA regulations forbidding vaccine mandates are not “as effective as” the federal ETS, which may trigger the somewhat lengthy process of withdrawing approval of the state plan.
Must State Plan OSHA states adopt the ETS?
Yes. OSHA gives State Plan States 30 days to adopt the ETS. State plan states must notify federal OSHA within 15 days of the action they intend to take regarding the ETS.
Ogletree Deakins will also continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Workplace Safety and Health blog and Coronavirus (COVID-19) Resource Center as additional information becomes available.
For more information on OSHA’s COVID-19 ETS, please join us for our upcoming webinar, “It’s Here—OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard,” which will take place on Tuesday, November 9, 2021, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Melissa A. Bailey and John F. Martin, will discuss the key provisions of the newly issued ETS. Register here.