The Occupational Safety and Health Administration (“OSHA”) issued its highly anticipated Emergency Temporary Standard (“ETS”) regarding COVID-19 vaccine requirements for certain larger employers. The ETS took effect Friday, November 5, 2021, but covered employers have between 30-60 days to implement the ETS requirements, as explained below. The Occupational Safety and Health Act (“OSH Act”) calls for a permanent standard to be finalized within 6 months after publication of an ETS, so this interim standard is in effect until it is superseded by a permanent standard. However, employers and trade groups have already challenged the ETS in court. The 5th Circuit Court has already issued an order staying the ETS from taking effect in response to an emergency petition citing grave statutory and constitutional issues, and similar cases have already been filed in the 6th, 7th, 8th, and 11th Circuits. We expect more Courts to follow suit in the coming days.
To prepare for this new rule, we recommend that employers:
- Determine whether the ETS applies to them.
- Determine which employees (if any) the ETS applies to.
- Decide how to comply with the ETS. Employers may choose to require all covered employees to get vaccinated. Or, employers may allow unvaccinated employees to provide weekly test results and wear face coverings in the workplace.
- Prepare notices to distribute to employees.
- Respond to any requests for medical or religious accommodations.
The important provisions of the ETS are:
- Covered Employers: The ETS applies to employers with 100 or more full-time or part-time employees. But, the ETS does not apply to: 1) workplaces that are already covered by the COVID-19 vaccine rules that apply to federal contractors (see our recent update on this issue here); and 2) healthcare employers covered by the Centers for Medicare and Medicaid Services’ new COVID-19 vaccine rules.
- Covered Employees: This ETS does not apply to employees of covered employers who: 1) do not report to a workplace where other individuals, such as co-workers or customers, are physically present; 2) always work from home; or 3) work exclusively outdoors (for example: landscaping and groundskeeping workers; construction laborers; highway maintenance workers; lifeguards, ski patrol, other recreational service providers; coaches and scouts; and transportation and material moving occupations).
- Compliance Dates: Covered employers must implement a policy and comply with all ETS requirements described below, other than testing for employees who have not completed their entire primary vaccination dose(s), by December 5, 2021. Employers must comply with all aspects of the ETS, including employee testing requirements, by January 5, 2022. Employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period.
- ETS Requirements: Covered employers have a choice of must developing, implementing, and enforcing either (1) a written mandatory COVID-19 vaccination policy, or (2) a written policy requiring covered employees to either get vaccinated or undergo weekly COVID-19 tests and wear a face covering in the workplace. The ETS does not impose physical distancing, ventilation, and cleaning standards. But, OSHA may argue these standards still apply under its “general duty clause.”
- Mandatory Vaccine Policy: For covered employers that select this option, the written policy must require vaccination of all covered employees, including new employees, except in cases when an employee has a medical or religious exemption. An employee who claims an exemption must report to the employer, who must engage the employee in an “interactive process” to try to find a reasonable accommodation. For employees who do not fall under an exemption and refuse to be vaccinated, employers may terminate them or place them on unpaid leave.
- Shot-or-Test Policy: If a covered employer chooses not to require vaccination, the employer must develop, implement, and enforce a written policy allowing employees to either choose to be fully vaccinated or be regularly tested for COVID-19 and wear a face covering as described in more detail below. For employers that adopt the alternative “Shot-or-Test” policy, the ETS places the administrative burden on them to keep track of all employees’ vaccination status and medical documentation, and ensure that all unvaccinated employees are tested on a weekly basis and wear face coverings unless meeting excepted circumstances noted below.
- Testing Requirements: Employers must require all unvaccinated employees to be tested (at the employees’ own expense) at least once every seven (7) days, and those employees must provide documentation of their most recent test result on a weekly basis. An unvaccinated employee must promptly notify the employer if they receive a positive COVID-19 test or diagnosis, so that the employer can remove them from the workplace immediately. Employees cannot return until they: 1) receive a negative test result; 2) satisfy the CDC’s Isolation Guidance (https://www.cdc.gov/coronavirus/2019-ncov/your-health/quarantine-isolation.html); or 3) receive a recommendation to return to work from a healthcare provider. The ETS does not require the employer to provide paid time off to any employee for removal as a result of the employee’s refusal/failure to provide documentation of a COVID-19 test result or as a result of a positive test or diagnosis; however; paid time off may be required by other laws, collective bargaining agreements with unionized employees, or workplace policies. Employees who are partially vaccinated are also required to be tested weekly until they are fully vaccinated. Employee tests cannot be self-administered unless observed by the employer or an authorized telehealth proctor. The Department of Health and Human Services (“HHS”) provides a list of community testing locations in each state that offer free testing for insured and uninsured residents that the employer can post or pass along to employees who are subject to weekly testing (https://www.hhs.gov/coronavirus/community-based-testing-sites/index.html). Where employers do not adopt a mandatory vaccination policy, they may also consider alternative measures that would physically remove unvaccinated employees from the workplace, such as increasing telework options.
- Face Covering Requirements: The ETS requires the employer to ensure that all unvaccinated employees wear a face covering when indoors near others and when occupying a vehicle with another person for work purposes. The face covering requirements do not apply: 1) when an employee is alone in a room with floor to ceiling walls and a closed door; 2) 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; 3) when employees are wearing respirators; or 4) where the employer can show that the use of face coverings is not feasible or creates a greater hazard.
- Recordkeeping and Reporting: Covered employers must keep the following vaccination and testing records on their covered employees:
- Proof of Vaccination: Employers must require employees to provide an acceptable proof of vaccination status. The employer must maintain a record and a roster of each employee’s vaccination status. This information is subject to applicable legal requirements for confidentiality of medical information. Acceptable proof of vaccination status is: 1) the record of immunization from a healthcare provider or pharmacy; 2) a copy of the COVID-19 vaccination record card; 3) a copy of medical records documenting the vaccination; 4) a copy of immunization records from a public health, state, or tribal immunization information system; or 5) a copy of any other official documentation that contains the type of vaccine administered, dates of administration, and the name of the healthcare professional or clinic site administering the vaccine. An employee who loses or cannot produce proof of their vaccination status may provide a signed statement with specific requirements as contained in the ETS.
- Test Records: The ETS requires employers to keep a record of each test result provided by each employee. These records must be maintained as confidential medical records and must not be disclosed, except as required or authorized by the ETS or other federal law.
- Reporting COVID-19 Fatalities or Hospitalizations: The employer must report to OSHA: 1) each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality; and 2) each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the hospitalization.
- Paid Time Off: Covered employers must support COVID-19 vaccination if they require employees to be vaccinated (or allow them to choose to be vaccinated) by providing:
- Time for Vaccination: When an employee gets each primary dose of the COVID-19 vaccine, the employer must provide up to 4 hours of paid time off at the employee’s regular rate of pay.
- Time for Recovery: If an employee experiences side effects from a primary dose of the COVID-19 vaccine, the employer must provide reasonable paid time off to recover. If the employee already has access to paid time off, the employer can require them to use it for this purpose.
- OSHA assumes all employees will be vaccinated during work hours. However, if an employee chooses to get the vaccine outside of work hours, OSHA does not require employers to pay for that time.
We interpret the ETS requiring covered employers to provide paid time off for “primary vaccination” doses but not require paid time off for booster shots, but this remains to be clarified.
- Costs to Employers: Employers are required to bear the costs associated with employee vaccinations, although there are many free options now that employers and employees can take advantage of. However, for purposes of this ETS, OSHA has determined it would not be appropriate to impose on employers any costs associated with COVID-19 testing or face coverings where an employee has made an individual choice to forego vaccination. Any employee who does not wish to pay testing costs may choose to become vaccinated or leave employment. Employers do not have to pay for COVID-19 testing as a reasonable accommodation either.
- Reasonable Accommodation: Under federal laws, including the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), workers may be entitled to a reasonable accommodation from their employer for requirements under the ETS, absent undue hardship, and go through the interactive process as explained above. The medical and religious exemptions involve fairly complicated case-by-case analyses for which we are available to provide legal advice. Even where an employee qualifies for such an exemption, it does not necessarily mean the employee’s preferences on how to work will be provided, as the employer must still go through the analysis to determine whether a reasonable accommodation is appropriate under the applicable legal standards (which are different for the medical and religious accommodation analyses).
- Notification Requirements: It is the employer’s responsibility to ensure that appropriate instructions and procedures are in place so that designated representatives of the employer (managers, supervisors) and employees follow the rule. The ETS requires the employer to inform each employee, in a language and at a literacy level the employee understands, about: 1) the requirements of the ETS as well as any employer policies and procedures established to implement the ETS; 2) COVID-19 vaccine 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; and 3) the requirements of 29 CFR 1904.35(b)(1)(iv) (prohibiting the employer from discharging or discriminating against an employee for reporting a work-related injury or illness) and Section 11(c) of the OSH Act (prohibiting the employer from discriminating against an employee for exercising rights under this section and protecting employees from retaliation for filing an OSHA complaint, reporting a work-related injury or illness, or otherwise exercising their rights afforded by the OSH Act); and 4) the prohibitions of 18 USC §1001 and Section 17(g) of the OSH Act (providing for criminal penalties associated with knowingly supplying false statements or documentation). This information can be provided in writing or in a regularly scheduled workplace meeting.
- Preemption of State and Local Laws: The ETS preempts any inconsistent state and local requirements that ban or limit an employer’s authority to require vaccination of employees or require wearing face A state can avoid preemption only if it submits, and receives federal approval for, a state plan for the development and enforcement of standards which must be at least as effective as the federal standards. Pennsylvania has not sought, or received approval for, any state plan.
- Penalties: In cases of intentional disregard of the standard by employers, OSHA can classify the citations as “willful” and apply its “egregious violation” policy to impose sufficiently large penalties against employers who willfully disregard their obligation to protect their employees under the ETS. This ETS makes OSHA’s intention clear to separately cite employers for each instance of the employer’s failure to protect employees and for each affected employee, where appropriate. Under OSHA’s Annual Adjustments to OSHA Civil Penalties for 2021, a willful or repeated violation is $9,753 per violation, with a maximum penalty of $136,532 per violation. A “serious” violation is $975 per violation with a maximum penalty of $13,653 per violation. It is expected that OSHA will raise these amounts for 2022.
Since noncompliance with the ETS can result in significant fines, it is important for covered employers to take this temporary standard seriously, and make efforts to understand it and be prepared to implement either a mandatory vaccination policy or a “shot-or-test” policy by the compliance deadlines, assuming the court challenges to the ETS are resolved by that time. We expect OSHA to update the ETS and other recently issued policies in the coming months. Houston Harbaugh’s employment law attorneys will continue to provide guidance in these areas and are available to answer questions and assist with drafting and implementing policies. Please feel free to contact the author of this article, Catherine Loeffler, at firstname.lastname@example.org, Craig Brooks at email@example.com, or Brian Lipkin at firstname.lastname@example.org for more informatio