Attention Employers: OSHA Issues Emergency Temporary Standard on COVID-19 Vaccination and Testing

The new ETS states that it preempts state and local laws that ban or limit an employer from requiring vaccinations, face coverings, or testing. Although the ETS will take effect when it is published in the Federal Register on November 5, employers will have until January 4, 2022 to ensure that all covered employees are either fully vaccinated or being tested weekly.

OSHA’s ETS requires covered employers to develop, implement, and enforce either a mandatory COVID-19 employee-vaccination policy or a policy requiring employees who are not fully vaccinated to take weekly COVID-19 tests and wear a face covering when present in the workplace. Due to the “extraordinary and exigent circumstances” resulting from the spread of the COVID-19 Delta variant, OSHA’s new standard does not require employers to implement a “comprehensive and multilayered set of COVID-19 exposure controls” like those required by the prior Healthcare ETS.

All employers with at least 100 full- or part-time employees company-wide at any time that the ETS is in effect are subject to these requirements, except for:

1. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or 
2. Workplaces where employees provide healthcare services or healthcare support services that are subject to the requirements of the Healthcare ETS that OSHA issued in June 2021. 

The ETS does not specifically address whether it will apply to employers who are also covered by a vaccination mandate issued on November 4, 2021 by the Centers for Medicare & Medicaid Services, which requires COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement.

To determine employer coverage, the preamble to the ETS states that:

• Employers that fluctuate above and below the 100-employee threshold are covered for the full term of the ETS as of the first date on which they hit the coverage threshold;
• Franchisors and franchisees are considered separate entities;
• Related entities are considered a single employer if they handle safety matters as one company;
• On multi-employer worksites, each company represented only need count its own employees, not the total number of workers at each site; and
• Staffing agency employees are considered employees of only the staffing agency, even if they work at a host employer location and the staffing agency and host employer would otherwise be considered joint employers by OSHA.

Even if the ETS covers an employer, employees are exempt from the rule’s vaccine/testing requirements if they do not report to a workplace where other individuals such as coworkers or customers are present, if they are working from home, or if they work exclusively outdoors.

According to the rule, employer vaccination policies must be in writing and contain the following elements:

• Employee coverage. An employer’s mandatory vaccine policy must explain which employees the policy covers. The ETS permits employers to exclude employees who are unable to get vaccinated due to medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations based on a disability or sincerely held religious belief. Any excluded employees must comply with the ETS’s testing/face covering requirements.
• Determining employee vaccination status. Employers must require employees to provide proof of immunization that includes the employee’s name, type of vaccine administered, date of administration, and the name of the health care professional or clinic site that administered the vaccine. Acceptable forms of proof include copies of (i) an immunization record from a health care provider or pharmacy, (ii) the employee’s U.S. CDC COVID-19 Vaccination Record Card, (iii) medical records documenting the vaccination; (iv) immunization records from a public health, state, or tribal immunization information system, or (v) any other official documentation that contains the required information. Employees unable to provide acceptable proof of vaccination may provide a signed and dated statement attesting to their vaccination status and inability to provide other proof, which must include specific language provided in the ETS. Employers must maintain employee vaccination records and a roster of each employee’s vaccination status for at least the full term of the ETS, and possibly longer as required by other applicable employment laws. Employee vaccination records must be kept confidential.
• Support for employee vaccination. Employers must provide employees reasonable paid time off, up to four hours per vaccination dose, which must be in addition to any other paid leave benefits that employees have accrued. Employers must also provide reasonable paid time off to recover from side effects experienced following each dose. The ETS does not include a specific cap on the amount of paid leave for recovery that employers must provide, although OSHA will presume that an employer is in compliance if it makes up to two days of paid leave per vaccination dose available. Employers may require employees to use paid leave that they have already accrued under the employer’s existing leave policies for this purpose.

Employers who elect to require testing/face coverings for some or all of their employees must develop a written policy that addresses the following:

• Testing requirements for unvaccinated employees. Employer policies must require unvaccinated employees to get tested for COVID-19 at least once every seven calendar days, regardless of their work schedule, and provide documentation of their most recent COVID-19 test result no later than the seventh day following the date on which the employee last provided a test result. This requirement covers unvaccinated employees who work remotely but periodically come into a covered workplace or office who must get tested within the seven days before their return and provide documentation of their test results upon arrival.
• Permitted tests. The ETS permits the use of rapid antigen COVID-19 tests, but only if they are conducted at point-of-care locations such as a physician’s office or pharmacy. COVID-19 tests that are both self-administered and self-read are not permitted unless they are observed by the employer or an authorized telehealth proctor. Employers are not required to pay for the cost of testing for employees who elect not to get vaccinated, although employee reimbursement may be required by other applicable laws or collective bargaining agreements. Where there are delays in getting test results that are beyond the employee or employer’s control, OSHA will consider refraining from enforcement actions if the facts show a good faith effort to comply with the ETS.
• Notification procedures for COVID-19 test results. Employer policies must specify how employees should report their COVID-19 test results (e.g., by submitting the results to Human Resources or through an online portal). Employees who do not provide their test results within the mandatory seven-day period must be excluded from the workplace until they provide their results. If an employee receives a positive test result or is otherwise diagnosed with COVID-19 by a licensed healthcare provider, the employer must excuse that employee from weekly testing for the 90 days following the date of their positive test or diagnosis due to the increased chance of a positive result. Employers must maintain test results confidentially for at least the ETS’s entire term.
• Required face coverings. Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except (i) when the employee is alone in a room with floor to ceiling walls and/or windows and a closed door, (ii) for a limited time while an employee is eating or drinking at the workplace, (iii) for identification purposes in compliance with safety and security requirements, or (iv) where an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief. (Please see our prior Alerts on accommodating employee religious beliefs here and here.) The ETS also contains a very limited exception for when the employer can show that using a face covering is infeasible or creates a greater hazard. Employers may not prohibit employees, visitors, or customers who wish to wear face coverings in the workplace from doing so even if they are fully vaccinated. Employers are not required to pay for any costs associated with face coverings.

Finally, an employer’s mandatory vaccination and/or testing policy must require employees—regardless of vaccination status—to promptly notify the employer of any positive COVID-19 test or diagnosis. Employees who test positive or are diagnosed with COVID-19 must be immediately excluded from the workplace until they either receive a negative COVID-19 test result or satisfy the return to work criteria in the CDC’s Isolation Guidance. The ETS does not require an employer to provide paid time off to any employee for removal as a result of a positive COVID-19 test or diagnosis but notes that paid leave may be required by other laws or applicable collective bargaining agreements.

The ETS will take effect immediately upon its publication in the Federal Register, which will occur tomorrow, November 5, 2021. Covered employers must be in compliance with all of the ETS’s requirements other than testing for employees who have not completed their entire primary vaccination dose(s) no later than 30 days after publication. Employers must implement a compliant testing program for employees who are not fully vaccinated no later than 60 days after publication.

OSHA will enforce the ETS using its standard enforcement procedures, which include planned and unplanned inspections and the issuance of citations with penalties totaling up to $13,653 for serious violations and up to $136,532 for willful or repeated violations. Although OSHA has experienced staffing shortages in recent years, the Biden administration’s proposed 2022 budget includes a significant increase in funding targeted at doubling the number of compliance officers who conduct enforcement inspections.

Because an emergency temporary standard serves as a proposal for a permanent final standard, OSHA seeks comments on all aspects of the ETS and, especially, on the following questions:

• Have smaller employers with fewer than 100 employees instituted vaccination mandates or requirements for regular COVID-19 testing or face covering use? What challenges have such employers had or can they foresee in implementing such programs?
• Should portions of the ETS, such as face coverings, apply to fully vaccinated employees?
• Should a permanent rule include exclusions for employees with natural immunity resulting from prior infection from COVID-19?
• Should OSHA consider imposing a strict vaccination mandate with no alternative compliance option (e.g., weekly testing)?
• What challenges and costs have employers incurred who already have a testing and removal policy in place in their workplace?
• Should OSHA require the use of face coverings that meet certain standards established by NIOSH or other consensus standards?
• Have employers implemented any policies or provided any information that has been helpful in encouraging an employee to be vaccinated?
• Do employers have any experience or data that would inform OSHA’s estimates regarding the economic feasibility of implementing the ETS?

Takeaways

Covered employers should immediately begin preparing a written vaccine and/or testing policy that complies with the ETS. Additionally, employers who have implemented a mandatory vaccine or testing policy should review and revise those policies as necessary to comply with the ETS. Finally, covered employers should immediately begin requesting and gathering proof of vaccination from employees. Employers who permit employees to get weekly COVID-19 tests should begin planning how employees will access such tests.

Smart In Your World

Arent Fox’s Labor & Employment group will continue to monitor this issue. If you have any questions, please contact one of the authors or the Arent Fox professional who usually handles your matters.