Pursuant to President Biden’s promise to use his Administration’s regulatory authority to increase the number of vaccinated American workers, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standard (ETS) requiring COVID-19 vaccination among employers employing 100 or more workers. The ETS also provides these employers the option of implementing routine COVID-19 testing in lieu of a mandate for unvaccinated employees.
If the ETS survives recent expedited legal contests (more on this below), its features must be implemented by covered employers very soon. By December 5, 2021, covered employers will need to have ascertained the vaccination status of all of their employees and have adopted a COVID-19 vaccination policy (details below). OSHA’s requirement that employees be vaccinated or subject to weekly testing goes into effect on January 4, 2022. To be considered vaccinated by this deadline, an employee will have either had to have received a single-dose vaccine or the second dose of a two-dose vaccine. In other words, there is no requirement that an employee have received their final dose two weeks before January 4, 2022. Likewise, covered employers have until January 4, 2022 to adopt testing practices if the employer does not adopt a hardline vaccination mandate.
Because OSHA has investigatory and enforcement powers, and because the requirements set forth in the ETS are likely to become the applicable standard of care in any negligence or wrongful death lawsuit, it is crucial that covered employers take steps now to come into compliance.
Here are 10 of the central features of the ETS:
- When is an Employer deemed a “Covered Employer” under the ETS? The ETS applies to any employer with a total of 100 or more part-time or full-time employees company-wide and regardless of location. Independent contractors are not counted for coverage purposes and employees placed by staffing companies are considered employees of their staffing company employer solely for purposes of this head count. The ETS does not apply to employers that are federal contractors or healthcare facilities (since they are covered by previously issued vaccination directives).
- Remote workers. If an employee is truly remote (i.e., no customer interaction, no site visits, no office visits), they are exempt from a vaccine mandate and the testing program. If they do go into the office, etc., however, they will need to have received a negative test within 7 days of going in and wear a mask.
- Mandatory vaccines or weekly testing. Covered employers must either mandate vaccines or require unvaccinated employees to test (weekly) and wear a mask. Subject to existing local or state laws, employers may pass the costs of testing on to their unvaccinated employees. Virginia has some limitations about this, so be sure to consult counsel for your testing plans. Also, OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce, e.g., an employer could implement a vaccine mandate only for its employees that regularly interface with customers. The other portion of the workforce would, however, have to test out weekly and wear masks if unvaccinated.
- Masks. Any employee who is not fully vaccinated must wear a “face covering” (defined in detail in the ETS) while inside or in a vehicle with a co-worker. Two pertinent exceptions to this requirement is (1) if the employee is alone in a room with floor to ceiling walls with the door closed or (2) for a “limited time” to eat or drink. In addition, employers must permit any employee (even those who are vaccinated) to wear a mask should they so choose.
- Employers must have a policy and educate their employees. Covered employers must craft a policy for distribution detailing, among other things, the vaccination and/or testing requirement, applicable exemptions (like medical necessity or a sincerely held religious belief that would pass Title VII muster), collection of vaccine status records, paid leave for getting vaccinated, a COVID-19 response plan in the event of a positive case, and a discipline policy for employees’ failures to adhere. Employers must also inform each employee, “in a language and at a literacy level the employee understands,” about the requirements of the ETS as well as about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html).
- Employers must determine the vaccination status of their employees. In order to verify vaccination status, employers can require employees to provide their vaccination card. If an employee does not have a vaccination card, an employee may provide records from a health care provider or pharmacy that includes the date the employee received the vaccine, the type of vaccine the employee received, and location where the employee received the vaccine. The ETS provides guidance on what an employer can do if an employee is unable to provide such documentation.
- Employers must maintain records of every employee’s vaccination status. Employers should maintain these records as confidential medical records.
- Paid Time Off for Vaccinations. Covered employers must provide reasonable time (up to 4 hours, including travel time) during work hours to receive their vaccine doses. This time must be paid at the employee’s regular rate of pay and is in addition to any PTO already provided by the employer.
- Paid Time Off for Side Effects From the Vaccine. In addition, an employer must provide a reasonable amount of paid sick leave to any employee who experiences side effects from the vaccine. Employers may require employees to use any paid sick leave already allotted to them. But, if an employee has already exhausted his or her paid sick leave, employers must provide paid sick leave without requiring the employee to accrue a negative leave balance.
- Employees Must Promptly Notify Their Employer If They Test Positive for COVID. Employers must notify their employees that they are required to provide prompt notice of a positive test. Thereafter, employers are required to remove the employees who tested positive from the workplace, regardless of such employees’ vaccination status. 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.
As mentioned above, once handed down, the ETS faced immediate legal challenges in the federal courts nationwide. At present, the United States Court of Appeals for the Fifth Circuit has temporarily stayed the ETS mandate. These challenges are generally being heard on an expedited basis.
It bears emphasizing that employers who plan on mandating vaccinations and testing regardless will not suffer from wasted efforts if the ETS is ultimately struck down. Likewise, if OSHA’s mandate is upheld, then these employers will be on track for the rapidly approaching first compliance deadline this December 5th. Those employers that plan to enforce a mandate only if the ETS is upheld should nevertheless begin contingency planning to ensure they meet the approaching deadlines depending on the outcomes of these challenges to ETS enforceability.
— If you have further questions or concerns or would like assistance in evaluating your business’s potential exposure under this new law , please contact:
Genevieve Bradley Sean Gibbons
703-485-3531 804-441-8442
gbradley@rothjackson.com sgibbons@rothjackson.com
