OSHA issues sweeping COVID-19 Vaccination and Testing Emergency Temporary Standard

OSHA's long-awaited COVID-19 Vaccination and Testing emergency temporary standard (ETS) was published in the Federal Register on November 5. In addition, OSHA issued an ETS summary, FAQs, ETS webinar, and a Social Media Kit.

Employers in Federal OSHA states must comply with most requirements by December 6, 2021 and with the mandatory vaccination/testing requirements by January 4, 2022, or face possible fines. State Plan states have up to 30 days to adopt the federal ETS or alternative regulations or standards that are at least as effective as the ETS.

OSHA estimates the mandate will apply to 263,000 entities, at 1.8 million workplaces, and cover 84 million workers.

Here is a summary of the key points:

Covered employers and employees

The ETS applies to employers with 100 or more employees. The count is on a company-wide basis; specifically, for a single corporate entity with multiple locations, all employees at all U.S. locations are counted for purposes of the 100-employee threshold. It is to include part-time employees, seasonal employees, and employees (such as home-based workers) who are not covered by the ETS. It does not include temporary employees sourced through a staffing agency (they count for staffing agency) or independent contractors.

The 100-employee threshold is based on the number of employees as of the effective date of the standard, November 5, 2021. However, an employer will be covered by the ETS if it reaches the 100-employee threshold while the ETS is in effect. For example, if an employer has fewer than 100 employers on Nov. 5, but adds employees, such as seasonal holiday workers, and reaches the threshold, it must comply. Importantly, the ETS applies to the employer for the duration of the ETS, even if the employee count falls below 100.

For multi-employer sites, such as construction, each employer counts their own employees, but the count must include all employees directly employed by the corporate entity, even if at different work sites. When a franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes.

The ETS also states, "that "two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted." Employers will need to consider how interrelated their entities are in handling workplace safety issues.

The ETS does NOT apply to:

• Workplaces subject to the vaccine mandate in Executive Order 14042 applicable to federal contractors
• Workplaces subject to OSHA's earlier COVID-19 ETS for health care workers
• Workplaces subject to CMS vaccine mandate
• Employees who do not report to a workplace where other individuals (e.g., coworkers or customers) are present*
• Employees working from home*
• Employees who work exclusively outdoor*

*Must be included in employee count and ETS applies if employee comes to workplace

Requirements of the ETS

Employers in Federal OSHA states must comply with all aspects of the ETS other than vaccination and testing by December 6, 2021. These include:

1. Written policy - Employers must develop, implement and enforce a written policy requiring each employee to be fully vaccinated against COVID-19, or alternatively to establish a policy allowing employees to choose whether to be fully vaccinated or tested for COVID-19 at least every seven days and wear face coverings. This should include information on how tests will be conducted and how employees should provide their test results to the employer. OSHA offers sample policies for both types of policies on its website.
2. Employee information - Employers must provide their employees with information about (i) the requirements of the ETS and the policies and procedures the employer is establishing or has established to implement the ETS (ii) the efficacy, safety, and benefits of vaccination by providing each employee with a copy of the CDC document "Key Things to Know About COVID-19 Vaccines" (iii) the requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting a work-related injuries or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under the ETS, and which protects employees from retaliation for filing a complaint with OSHA, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act and (iv) the prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation.
3. PTO for vaccination -Employers must provide a reasonable amount of time, up to four hours of paid time off to each employee during work hours for each vaccination dose, including travel time, at the employee's regular rate of pay (only for vaccinations that occur after the effective date of the ETS). If an employee needs more than four hours to get fully vaccinated, the employee may use additional, otherwise available paid leave. Employers do not have to reimburse for transportation costs nor grant paid time to employees for time spent receiving the vaccine during non-working hours.
4. PTO to recover from vaccination - Employers must provide a reasonable amount of time off and paid sick leave to recover from side effects experienced following any vaccination dose (other than booster shots) for recovering from adverse effects of the vaccines. Employers can require employees to use accrued sick time, if available. Other federal, state, or local laws or collective bargaining agreements may apply.
5. Vaccination status and face coverings - Employers must determine the vaccination status of all employees (see vaccination records and testing requirements below) and ensure that unvaccinated employees wear a face covering when indoors and when occupying a vehicle with someone else for work, except in the limited circumstances described on p.61553 of the Federal Register. Employers cannot prohibit employees, regardless of vaccination status, from voluntarily wearing a face covering or facemask, unless it creates a serious workplace hazard, and cannot prohibit customers or visitors from wearing face coverings. Employers do not have to pay for face coverings, although other laws, regulations, or agreements may apply.
6. Removal from work of COVID-19 positive workers - Ensure compliance with requirements regarding the reporting of positive tests and removal from work of those who test positive or are diagnosed with COVID-19.
7. Report work-related COVID-19 fatalities and in-patient hospitalizations - It is important to note that reporting requirements differ from the previous requirements for reporting. OSHA has published a fact sheet explaining the requirements. The ETS requires employers to report each work-related COVID-19 fatality or in-patient hospitalization of any employee, regardless of the amount of time between the exposure to COVID-19 in the work environment and the death or in-patient hospitalization.

Vaccination records and testing requirements

By January 4, 2022 employers must:

• Know the vaccination status of all employees - Only employees confirmed as "fully vaccinated" will be allowed to report to work without proof of a negative test. The ETS does not require booster shots for any employee to be considered fully vaccinated; it defines "fully vaccinated" as two weeks after receiving a single dose vaccine or after receiving the second dose of a two-dose vaccine. It accepts the US FDA-approved vaccines, vaccines that are listed for emergency use by the World Health Organization, or those administered as part of a clinical trial at a US site if the employee did not receive a placebo. The ETS does NOT offer a blanket exemption to vaccination or testing based on "natural immunity" or the presence of antibodies from a previous infection.

  Employers must maintain "a roster of each employee's vaccination status." Employees must provide acceptable proof of vaccination status, which can be:

  • a record of immunization from a health care provider or pharmacy
  • a copy of the 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
  • 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)

  The rule provides that "in instances where an employee is unable to produce an acceptable proof of vaccination as listed above, they can submit a signed and dated statement by the employee subject to criminal penalties for knowingly providing false information:

  • Attesting to their vaccination status (fully vaccinated or partially vaccinated); and
  • Attesting that they have lost and are otherwise unable to produce proof required by the ETS.

  If employers ascertained and retained records of vaccination status before November 5, the employer does not need to obtain additional proof for those employees. The employer must preserve all records, which are considered employee medical records and must be kept confidential. These records and roster are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS remains in effect.
  
  

• Verify and maintain weekly negative test results - Employers who allow employees to be tested weekly in lieu of vaccination, must maintain a record of each test result provided by each employee or obtained during tests conducted by the employer, which "identifies the worker (i.e., full name plus at least one other identifier, such as date of birth), the specimen collection date, the type of test, the entity issuing the result (e.g., laboratory, healthcare entity), and the test result." Here are key points related to the testing requirements:
  • Employees must be tested for COVID-19 at least once every seven days and must provide documentation of the most recent COVID-19 test result no later than the seventh day following the date on which the employee last provided a test result. An employee who does not report to a workplace during a period of seven or more days (e.g., teleworking) must be tested for COVID-19 within seven days before returning to the workplace and provide documentation of the test result to the employer upon return to the workplace.
  • If an employee does not provide documentation of a COVID-19 test result as required, they must be removed from the workplace until they provide a test result.
  • Employers are NOT required to pay for tests under the ETS, however, other laws or bargaining agreements may apply. If an employee is participating in the testing program because of a medical or religious accommodation to vaccination, employers are responsible for the costs associated with testing.
  • The rule does NOT allow self-attestation for negative test results. The ETS outlines methods for which employers can independently confirm the results of COVID-19 testing, including reliance upon testing by healthcare providers, requiring employees to conduct and read the test results under the observation of an authorized employee or telehealth proctor.
  • Simple home rapid antigen test kits are acceptable, but the test CANNOT be both self-administered and self-read by the employee outside the presence of the employer or a healthcare or telehealth test proctor.
  • A permissible test is one that has been cleared, approved or authorized, including in an Emergency Use Authorization by the FDA to detect current infection with the SARS- CoV-2 virus (e.g., a viral test), is administered in accordance with the authorized instructions, and is not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Antibody tests that look for antibodies in the immune system produced in response to SARS-CoV-2 and are not used to diagnose an active COVID-19 infection are NOT acceptable for weekly testing compliance.
  • "Pooled" testing is allowed. If the pooled specimen is positive, additional individual testing is required to determine which employees are positive and/or negative.
  • When an employee has received a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.

Contrary state laws

A few states have laws or executive orders prohibiting employers from implementing vaccine mandates or imposing restrictions on their ability to do so. OSHA drafted the guidelines with potential challenges in mind. The ETS expressly preempts such laws and orders and the very first question in the FAQs hits the issue head-on.

However, as vaccination mandates have become a lightning rod of controversy, legal challenges happened almost immediately. Sixteen Attorney generals filed a lawsuit on Nov. 5. On November 6, the U.S. Court of Appeals for the Fifth Circuit stayed the order, noting there was "cause to believe there are grave statutory and constitutional issues with the mandate," until it could be fully reviewed by the court. A quirk in the way OSHA's emergency standards can be challenged allows opponents to bypass the lower courts and go directly to a federal Court of Appeals. The legal situation is fluid and many experts expect there will be a patchwork of decisions and ultimately may be decided by the Supreme Court. The best course for action for employers is to prepare for the ETS, but follow the challenges closely and be prepared to implement should the ETS be upheld.

So far, efforts to challenge vaccine mandates have fallen short. The Supreme Court has turned away legal challenges to vaccine mandates at Indiana University and for health care workers in Maine notwithstanding their religious objections. A federal judge in Boston denied efforts to overturn a vaccination mandate for 1,600 state executive branch employees. A vaccination requirement for New York City teachers and staff was upheld by lower courts and a request to the Supreme Court for an injunction was denied. Yet, the one area where challengers have had some traction is exemptions to mandates, particularly religious exemptions. (See HR Tip)

State plans

There are 22 State Plan states that cover private employers and state and local government workers and six state plans that cover state and local government workers. In these states, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.

The states must adopt the requirements of the ETS, or alternative measures that are "at least as effective," no later than December 6, 2021. States that fail to do so risk losing their state plan status. The Department of Labor sent letters to South Carolina, Arizona, and Utah warning that their approved status to operate their OSH State Plans could be revoked because they have not yet adopted the prior COVID-19 ETS for healthcare that federal OSHA issued in June.

Enforcement

Many experts expect OSHA will rely heavily on employee complaints to prioritize inspections as well as include a review of ETS compliance when they are doing other inspections. Employers could face OSHA citations and penalties of up to $13,653 per violation, and additional citations or penalties for willful or egregious failures to comply. In addition, covered employers may face potential exposure for individual whistleblower, retaliation, negligence, and other claims potentially asserted by employees.

The ETS will remain in effect until withdrawn or superseded by a permanent standard, which must be issued no later than six months after November 5. The public is encouraged to submit written data or comments on whether the ETS should become a final rule (or to object and request a public hearing) within 30 days but will have 60 days to submit comments on information collection. OSHA left the door open for a future rule for smaller employers and is seeking comments to help the agency make that determination. For information on how to submit comments.

Additional information