As part of President Biden’s Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (Plan) which instructed the Occupational Safety and Health Agency (OSHA) to draft a rule mandating that all businesses with 100 or more workers require their employees to either be fully vaccinated against COVID-19 or show a negative test weekly, the agency has issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS” or “rule”). The rule has been published in the Federal Register and is effective as of today, November 5, 2021.
The OSHA ETS establishes binding requirements for large employers (100 or more employees) to help minimize the risk of COVID-19 transmission in the workplace.
While the ETS is effective immediately, to comply, employers must ensure they are adhering to the provisions of the rule by the following dates:
- By December 5, (30 days after publication) all requirements of the ETS must be implemented with the exception of the weekly testing requirement for employees who have not completed their entire primary vaccination dose(s). This means that employers will need to obtain the vaccination status of all covered employees by this date.
- By January 4, 2022 (60 days after publication) the weekly testing requirement for employees who have not received all doses required for a primary vaccination must be implemented.
Covered Employers and Employees
- In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work (i.e., remotely).
- The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted.
- Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect.
- 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.
In situations where employees from a staffing agency are placed with an employer, the staffing agency’s employees would not be counted by the host employer in determining the 100-employee count.
The key requirements of the ETS are:
- Employer Policy on Vaccination. The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that 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.
- Determination of employee 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 following list includes the acceptable documentation for proof of vaccination:
- a copy of the U.S. COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health, state, or tribal immunization information system; or
- 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(s).
- Employer support for employee vaccination. The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
- Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.
Employers who provide paid time off, such as sick leave or PTO may require this time to be charged against any existing employer provided paid time off unless state or local law requires otherwise (i.e., NY Paid Vaccination Leave). Note, if an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects and employers cannot require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.
- COVID-19 testing for employees who are not fully vaccinated. The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven (7) days before returning to work (if away from the workplace for a week or longer).
- The employer must maintain a record of each test result required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer.
- The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.
- The ETS further does not require that employers reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. This could include the costs of travel to an off-site vaccination location (e.g., a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose. However, if testing is conducted in the middle of the workday there may be implications under federal and state wage and hour laws.
- Which COVID-19 Tests are accepted under the ETS?
According to the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:
- Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
- Administered in accordance with the authorized instructions; and
- Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.
- Employee notification to employer of a positive COVID-19 test and removal from the workplace. The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work, according to the Center for Disease Control’s guidance on quarantine & isolation.
- Face coverings. The ETS requires employers to ensure that each employee who is not fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).
- Anti-Retaliation Provisions. Employees must be able to notify their employer of other COVID-19 hazards in the workplace, such as co-workers refusing to wear facemasks or wearing them improperly, without fear of retaliation. Employers are explicitly prohibited from discharging or in any manner discriminating against any employee for exercising their right to the protections required by the ETS, or for engaging in actions that are required by the standard.
- Information provided to employees. The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand: (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.
- An employer may provide this information to employees through email communications, printed fact sheets, or during a discussion at a regularly scheduled team meeting. There are no formal training requirements.
- The ETS does not specify the frequency with which employers must provide information to employees. However, when an employer’s policies or procedures change, the employer must provide any updated or supplemental information to employees.
- Reporting COVID-19 fatalities and hospitalizations to OSHA. The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight (8) hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
- Availability of records. The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to the requesting employee and to anyone having written authorized consent of that employee. Employers are also required to 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.
- The ETS’ impact on state or local guidance. OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing. However, state or local government mandates or guidance (e.g., legislative action, executive order, health department order) that go beyond and are not inconsistent with the ETS are not intended to be limited by this ETS. OSHA recognizes that many states have taken action with mandatory requirements applicable to general industry, and that states have additional powers that OSHA does not (e.g., criminal sanctions). OSHA does not intend to preempt these powers or requirements. For example, OSHA does not intend to preempt state or local COVID-19 testing requirements or state or local requirements for customers to wear face coverings whenever they enter a hospital or other health care facility, or in public places generally.
- The impact of the ETS on OSHA State Plans. The OSH Act requires that State Plans must cover state and local government employees (including, e.g., state and local school systems within the scope of the ETS), even though federal OSHA does not have coverage over such employees in states without OSHA-approved State Plans. In addition, when OSHA establishes an ETS, State Plans must either amend their standards to be identical or “at least as effective as” the new standard or show that an existing State Plan standard covering this area is “at least as effective” as the new federal standard.
Adoption of this ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the promulgation date of the final federal rule (December 5), and State Plans must notify OSHA of the action they will take within 15 days. The State Plan standard must remain in effect for the duration of the ETS. A State Plan standard that prohibits employers from requiring vaccination would not be at least as effective as this ETS because OSHA has recognized in this ETS that vaccination is the most protective policy choice for employers to adopt to protect their workplaces.
A link to a complete state plan database resource can be found here.
- The ETS also serves as a Proposed Rule. Although the ETS takes effect immediately, it also serves as a proposal under Section 6(b) of the OSH Act for a final standard. Accordingly, OSHA seeks comment on all aspects of this ETS and how it would be adopted as a final standard. OSHA encourages commenters to explain why they prefer or disfavor particular policy choices, and to include any relevant studies, experiences, anecdotes or other information that may help support the comment. This is significant because an ETS can only be in place for six (6) months, but a final rule can be adopted as a permanent OSHA standard.
- Employers with employees in a Healthcare setting will need to remain in compliance with the specific provisions of the Healthcare ETS while it remains in effect. A link to the complete list of Healthcare ETS FAQs is available here.
- This ETS does not require employers to provide paid time off to any employee for removal due to a positive COVID-19 test or diagnosis of COVID-19; however, paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. On the other hand, the ETS does not preclude employers from choosing to pay employees for time required for removal under this standard. Additionally, employers should allow their employees to make use of any accrued leave in accordance with the employer’s policies and practices on use of leave.
- Booster shots and additional doses are not included in the definition of fully vaccinated under the ETS. Therefore, the employer is not required to obtain vaccination-related information beyond what is considered necessary to demonstrate that the employee is fully vaccinated as defined by the ETS.
- Employers not enforcing this ETS could be cited by the agency and face a fine of up to $13,653 for each serious violation. A willful violation, for an employer deliberately disregarding the mandate, could lead to a fine as high as $136,532.
- Even though the release of the ETS provides clarification for the implementation of the rule and how employers will be impacted, one question that was not explicitly addressed in the FAQs pertains to the availability of tax credits to employers for having to provide paid time away from work to employees obtaining their vaccinations/recovering from the side effects experienced following each dose? Presumably, the lack of an expressed statement on this, means that employers will not receive a tax credit for offering paid leave.
- A webinar that provides an overview explanation of the ETS has been released by OSHA and is available here.
- The complete list of ETS Frequently Asked Questions (FAQs) from OSHA is available here.
Next Steps for Employers
Employers who are impacted by the ETS, should begin forecasting how they will navigate operational challenges related to testing and required vaccination including, but not limited to:
- Reviewing/updating policies and procedures and communicating these to employees prior to December 5;
- Determining whether complying with the weekly testing requirement will be solely on the employee or if the company will provide testing and who will cover the cost;
- Implementing a process for tracking each employee’s vaccination status including who will be responsible for collecting this information from employees and maintaining the required records in accordance with the ETS and the ADA;
- Implementing a process for employees to request paid time off for vaccination and/or recovery from vaccination;
- Responding to reasonable accommodations requests for religious and medical-related reasons and engaging in the interactive process;
- Assessing wage and hour implications;
- Assessing any requirements under a collective bargaining agreement (if applicable);
- Ensuring confidentiality of employee information and privacy; and
- Assessing the interplay with state and/or local laws and establishing how to comply with each.
Further, employers may also need to remind employees of its policies against harassment, bullying or discrimination as employee vaccination status can become a contentious issue which has led to some workplace conflicts. Specifically, because unvaccinated workers must be masked in the workplace, employers should communicate that masking is not necessarily indictive of an employee’s vaccination status and that assumptions about vaccination status and treating employees differently in the workplace will not be tolerated.
Given the extensive administrative complexity and operational challenges that may surround weekly testing, employers may also have to weigh whether having a blanket mandatory vaccination policy for employees would make more sense for their organization. Keeping in mind that employee morale and productivity and possible resignations may occur with the establishment of mandatory vaccination policy, this decision should be very carefully and thoughtfully weighed.
Due to the various outstanding questions and the potential for needing to comply in a timely manner, employers should consult with their legal counsel for additional guidance.
HR Works will continue to monitor this topic and provide updated information as it becomes available.