On November 5, 2021, the Occupational Safety and Health Administration ("OSHA") published its COVID-19 Vaccination and Testing Emergency Standard ("ETS"), which requires employers with 100 or more employees to implement a mandatory vaccination policy or require employees to wear face coverings and submit to weekly testing.1 The ETS is an interim final rule, which became effective on its publication date and has a 30-day comment period ending on December 6, 2021. The ETS has already been the focus of multiple legal challenges, including BST Holdings LLC, et al. v. OSHA, et al., in which the Fifth Circuit issued an order on November 6, 2021 staying the ETS pending further action from the court, and reaffirmed the stay in a lengthier opinion on November 12, 2021.2 However, given that the stay may be lifted and that employers may have to comply with the majority of the ETS' provisions by December 6, 2021 (as explained further below), employers should use this time wisely to continue working towards compliance and consult with legal counsel. Below is a summary of the ETS' key provisions.
Executive Summary: Generally, the ETS requires employers to either implement a mandatory COVID-19 vaccination policy or require employees to undergo regular COVID-19 testing and wear face coverings. The ETS applies to employers with 100 or more employees, but may not apply to all of the employer's employees. Regardless of the type of policy the employer implements, employers must also determine employees' vaccination status and maintain supporting documentation concerning said status, provide paid time off to get vaccinated and recover from side effects, require that employees alert employers of a positive COVID-19 test result or diagnosis, provide employees with certain COVID-19 related information, report COVID-19 fatalities and hospitalizations to OSHA, and make certain employee records available to OSHA for its review within specific timeframes. We've outlined more specific information concerning the ETS' provisions below.
Employers and Employees Covered Under The ETS
The ETS generally applies to employers with 100 or more employees at any time the ETS is in effect.3 In determining whether they meet the 100-employee threshold, employers must include all employees (full-time, part-time, and temporary) across U.S. locations that they employ directly, but do not need to include independent contractors.4 According to the standard, whether the ETS applies to the employer is initially determined as of the effective date of the ETS (i.e., November 5, 2021). If an employer does not have 100 employees on this date, the employer is not covered by the ETS at that time. However, the employer may come within the scope of the ETS if it subsequently hires more employees and reaches or exceeds the 100-employee threshold. Additionally, once the ETS applies to the employer, the employer continues to be covered for the remainder of the time the ETS is in effect, regardless of fluctuations in the size of the employer's workforce.
Though employers may be covered by the ETS, the ETS' provisions may not apply to all of the employer's employees. For example, the ETS' provisions do not apply to employees: (i) who do not report to a workplace where other individuals such as coworkers or customers are present (i.e., the employee works in a solitary location where only the employee is present); (ii) while working from home; or (iii) who work exclusively outdoors. However, employees falling in any of these categories must still be counted for purposes of the 100-employee threshold.
COVID-19 Vaccination Policies Mandated By The ETS
The ETS requires employers to establish, implement, and enforce a written policy that either: i) requires all employees, including new hires, to get fully vaccinated (subject to applicable exclusions discussed below) or ii) allows employees to choose between full vaccination or weekly testing and wearing a face covering in most situations when working near others. However, employers need not have a blanket mandatory vaccination policy. Instead, employers may choose to establish a partial mandatory vaccination policy applicable to a subset of their employees and make the vaccine optional for others. Employers opting for this mixed approach should carefully consider the business necessity of having some employees vaccinated versus others and should apply their policy consistently across their workforce.
According to the ETS and OSHA's FAQs, employers must include the following information in their policies: i) the requirements for COVID-19 vaccination; ii) applicable exclusions from the written policy (i.e. medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs); iii) information regarding determining an employee's vaccination status and how this information will be collected; iv) paid time off and sick leave for vaccination purposes; v) notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace; vi) information to be provided to employees (i.e. how the employer is making that information available to employees); vii) disciplinary action for employees who do not abide by the policy; viii) all relevant information regarding the policy's effective date, who the policy applies to, and relevant deadlines for submitting vaccination information and for getting vaccinated; ix) procedures for compliance and enforcement; and x) the procedures applicable to employees who are not fully vaccinated (i.e., those who decline vaccination, those who are unable to receive vaccination and are, absent undue hardship to their employers, entitled to reasonable accommodation).5
Requirements For Employees Who Are Not Fully Vaccinated
Employers must ensure that employees who are not fully vaccinated (i.e., those who are unvaccinated or partially vaccinated), and who either physically report to workplaces where other individuals are present or share vehicles with other coworkers, follow the testing and face covering requirements outlined in the ETS. According to the ETS, employees who are unable to receive vaccination as a result of a medical contraindication or medical necessity requiring delay, and those entitled to reasonable accommodations, must also follow the testing and face covering requirements unless they fall in one of the three exceptions outlined in Section I. The ETS also makes clear that employees may also request accommodations for the testing and/or face covering requirement, and that employers should evaluate those requests under applicable law.
Testing Requirements
Employees who report to work at least once per week (i.e., seven days), and who are not fully vaccinated, must be tested at least once per week and must provide their employer the test results no later than the seventh day following their previous test result. Employees who do not report to work weekly (i.e., they are physically away from the workplace for seven or more days) must be tested within seven days prior to returning to the workplace and must provide their employer the test results upon returning to the workplace. If an employee tests positive for COVID-19 or is diagnosed with COVID-19 by a health care provider, the testing requirements are temporarily suspended for 90 days following the positive test or diagnosis.
Under the ETS, employees' COVID-19 tests must be approved or authorized by the FDA, conducted according to authorized instructions, and cannot be both self-administered and self-read unless they are observed by the employer or an authorized telehealth proctor. Alternatively, employers may conduct over-the-counter tests themselves.
Employers are required to maintain a record of each test result provided by the employee or results observed during tests conducted by the employer, and must treat these documents as employee medical records (i.e., kept confidential, with limited access, and separate from the employees' personnel files). Additionally, while the ETS does not require employers to pay for this testing, OSHA acknowledges that employers may be required to cover testing costs under other applicable laws or collective bargaining agreements.
Face Covering Requirements
According to the ETS, employees who physically report to work and who are not fully vaccinated must wear a face covering at all times, except: (i) when an employee is 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. Employees may also choose to wear face coverings, and employers may not prevent them from doing so. The ETS does not require employers to provide or pay for employees' face coverings, though OSHA acknowledges that employers may be required to cover these costs under other applicable laws or collective bargaining agreements.
Employees' Proof of Vaccination
To ensure that the vaccination, testing, and face covering requirements of the ETS are met, the ETS requires that employers determine their employees' vaccination status. Employers must also maintain records of each employee's vaccination status and preserve acceptable proof of an employee's full or partial vaccination status, which include but are not limited to the COVID-19 Vaccination Record Card, medical records documenting the vaccination, other forms of documentation, and employee attestations when the employee is vaccinated but unable to obtain proof of vaccination.6 Additionally, employers must create and maintain a roster that includes the name of each employee and clearly indicates the vaccination status of each employee (i.e. whether they are fully vaccinated, which generally means that the employee is two (2) weeks out from a completed vaccination series that was authorized or approved by the FDA, or listed for emergency use by the World Health Organization; partially vaccinated; not fully vaccinated because of a medical or religious accommodation; or not fully vaccinated because they have not provided acceptable proof of their vaccination status). Note that the ETS does not address booster shots or additional doses.
Information concerning employees' vaccination status, records of their vaccination status, and the roster required under the ETS must be treated as employee medical records, which must be kept confidential, with limited access, and separate from the employees' personnel files.
Employers who collected and retained documentation concerning employees' vaccination status prior to the effective date of the ETS (i.e., November 5, 2021) do not have to re-determine the vaccination status of those employees. Verbal confirmation of employees' vaccination status, however, is not enough to satisfy the requirements of the ETS.
Support for Employees Receiving COVID-19 Vaccinations
Regardless of whether employers implement mandatory vaccination policies or require regular testing and face coverings, the ETS requires that employers provide employees with reasonable time to receive each dose in a primary COVID-19 vaccine series (which, under the ETS, does not seem to include booster shots or additional doses). If employees receive their dose(s) within working hours, employers are required to provide up to four (4) hours of paid time off per dose, which is in addition to any other accrued paid leave the employee may already have (i.e., sick time, vacation, etc.). Employees who need more than four hours to receive the dose(s) may receive unpaid (protected) leave or may use their accrued paid time off (i.e., paid time off if the employer has a combined leave bank, or sick leave only if the employer has a specific bank for sick time) to cover the additional time.
The ETS also requires that employers provide a reasonable amount of time and paid sick leave to recover from side effects of each vaccine dose in their primary COVID-19 vaccine series. OSHA's FAQs make clear that there is no specific standard for "reasonable time" under the ETS, but that based on CDC guidance explaining that side effects generally last a few days, OSHA presumes that employers who provide up to two (2) days of paid sick leave are complying with the ETS' requirement. Unlike the time spent getting vaccinated, employers may require employees to use their accrued paid time off (i.e., paid time off if the employer has a combined leave bank, or sick leave only if the employer has a specific bank for sick time) to cover the duration of their side-effects.
Employers may not require an employee to accrue negative paid time off or borrow against paid time off to be accrued in the future for purposes of the ETS. In other words, if employees have no available paid sick time, the employer should provide them additional paid sick time. Additionally, other federal, state or local laws, and/or collective bargaining agreements may require that employers provide additional paid time off to employees for vaccination or to recover from side effects.
Employee Notification Regarding a Positive Test and Temporary Removal From the Workplace
Employers must require employees, regardless of their vaccination status, to promptly notify them if they receive a positive COVID-19 test result or are diagnosed with COVID-19 by their healthcare provider. However, OSHA acknowledges that the removal requirements outlined above are the floor, not the ceiling, and encourages employers who are able to do so to consider removal based on COVID-19 symptoms, suspected or confirmed exposures, and upon learning that an employee has been advised to quarantine or isolate by a state or local public health authority.
Once employers are notified that an employee received a positive test or diagnosis, the employee must be removed from the workplace as soon as possible. The employee may return to the workplace if they meet one of the following three criteria: i) they receive a negative result on a COVID-19 nucleic acid amplification test (NAAT); ii) they meet the return to work criteria in the CDC's "Isolation Guidance" (February 28, 2021); or iii) if the employee receives a return-to-work recommendation from a licensed healthcare provider.7 Employers should note that if a licensed health care provider recommends a period longer than the period listed in the CDC's "Isolation Guidance," the employer would need to abide by that longer period.
The ETS does not require employers to provide paid time off to employees who are temporarily removed from the workplace because of a positive test or diagnosis. Employees who are temporarily removed for the reasons outlined above may be required to work if they are not too ill and if suitable work is available. However, if employees are too sick to work, the employer should provide sick leave or other leave as may be required by applicable law and, if more generous than applicable law, consistent with their general policies and practices.
Information Employers Must Provide to Employees
The ETS requires that employers provide each employee the following information in a language and at a literacy level they can understand: i) the requirements under the ETS, as well as any employer policies and procedures established to implement the ETS; ii) the CDC's "Key Things to Know About COVID-19 Vaccines" guidance, which is available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html; iii) the provisions of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act, which work together to protect employees from retaliation for engaging in any activities that are protected by an OSHA statute or regulation; and iv) the prohibitions of 18 U.S.C. 1001 and Section 17(g) of the OSH Act, which provide for criminal penalties in connection with knowingly supplying false statements or documentation. Regarding the last point, these penalties include fines up to $10,000, up to six (6) months of imprisonment, or both.
Reporting COVID-19 Fatalities and Hospitalizations to OSHA
Generally, under OSHA's regulations, employers are required to report work-related fatalities within 8 hours of the event, and in-patient hospitalization, amputation, and loss of an eye within 24 hours of the event. In addition to the above, the ETS requires COVID-19 specific reporting: employers must report each work-related COVID-19 fatality to OSHA within 8 hours of the employer learning about the fatality, and each work-related COVID-19 in-patient hospitalization to OSHA within 24 hours of the employer learning about the in-patient hospitalization.8
Availability of Records
The ETS requires that employers make certain records available upon request (whether the request is in writing, by phone, or in person) and within a specific timeframe. For example, employers must make an employee's COVID-19 vaccine documentation and any test results available to the particular employee, or anyone having written authorized consent of that particular employee, by the end of the next business day after a request. Additionally, an employee or an employee representative may request the aggregate number of fully vaccinated employees at the workplace and the total number of employees at the workplace, and must receive this information by the end of the next business day after the request. Note that employers must be careful to not disclose any personal identifiable information or personal medical information when responding to requests regarding the vaccination status of the workforce.
Lastly, if OSHA requests an employer's written vaccination policy and/or the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace, employers must be prepared to provide that information to OSHA within four business hours of the request. Employers must also allow OSHA to examine and copy employee COVID-19 vaccine documentation, the roster of employee vaccination status, and employee COVID-19 test results upon request, and must be prepared to provide this information by the end of the next business day after a request.
Deadlines
Under the ETS, employers are required to comply with all obligations by December 6, 2021, except that COVID-19 testing of employees who are not fully vaccinated must begin by January 4, 2022. Depending on the outcome of the legal challenges against the ETS, employers may get an extension on one or both deadlines. However, the safest approach is for employers to continue preparations and have a plan to comply with the ETS.
Interaction with State and Local Laws and Collective Bargaining Agreements
The ETS sets the minimum requirements for employers. OSHA's FAQs make clear that the ETS preempts any State or local law that limits or prohibits an employer's authority to require COVID-19 vaccinations, testing, or face coverings. Conversely, the ETS does not preempt "non-conflicting State or local requirements of general applicability that apply to workers and nonworkers alike, that regulate workers simply as members of the general public, and that are consistent with the federal standard." The ETS also does not preclude bargaining for additional protections or prevent employers who are not subject to bargaining from implementing additional protective measures.
Understandably, employers who have been subject to the NY HERO Act (the "Act") may be wondering how the ETS impacts their obligations under the Act. There is no clear guidance on this point at this time. Additional guidance regarding the Act's applicability in light of the ETS is necessary to clarify employers' obligations under both laws.
Footnotes
1 The ETS may be accessed here: https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard#p-1308.
2 The Fifth Circuit's order staying the ETS may be accessed here: https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.
3 The ETS does not apply to workplaces subject to OSHA's Healthcare ETS (published on June 17, 2021) or President Biden's Executive Order regarding federal contractors (issued on September 9, 2021).
4 For more information regarding which employees are included in the 100-employee threshold, including when to count employees with joint employers, employers should consult the ETS here: https://www.federalregister.gov/d/2021-23643/p-1212.
5 OSHA's FAQs may be accessed here: https://www.osha.gov/coronavirus/ets2/faqs.
6 For a more detailed explanation of what documentation meets the ETS' requirements, employers should consult the ETS here: https://www.federalregister.gov/d/2021-23643/p-604.
7 The materials incorporated by reference in the ETS, including but not limited to the CDC's "Isolation Guidance," may be accessed here: https://www.osha.gov/coronavirus/ets/ibr.
8 For more information regarding the COVID-19 reporting requirements, employers should consult the ETS here: https://www.federalregister.gov/d/2021-23643/p-1545.
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