OSHA Issues Emergency Temporary Standard Mandating COVID-19 Vaccinations or Testing for Many Private Employers

On November 4, 2021, the Biden Administration issued a final Occupational Safety and Health Administration (OSHA) ruling in the form of an Emergency Temporary Standard (ETS) designed to minimize the risk of COVID-19 transmission in the workplace. OSHA also released a summary of the ETS and FAQs to support employer compliance with this new ETS.

Overview
Under the ETS, private employers with 100 or more employees will be required to:

1. Either ensure the full COVID-19 vaccination of its workers or require a weekly negative COVID test result from unvaccinated employees;
2. Give employees paid time off to be vaccinated and recover from side effects of the vaccine;
3. Adopt a mandatory mask requirement for all unvaccinated workers; and finally,
4. Remove from the workplace any employee who tests positive for COVID-19 or is diagnosed with COVID by a licensed healthcare provider.

In determining the 100- employee threshold, employers must include all employees across all of their locations regardless of vaccination status, part-time employees, and remote workers. For employers with fluctuating employee numbers, the 100-employee threshold is determined on the effective date of the ETS, November 5, 2021.

OSHA has the authority to issue an ETS for employers when worker safety is threatened by “grave danger.” This ETS is intended to preempt any state or local requirements that may seek to ban or limit employers from requiring vaccines, face coverings or testing.

Employers Not Covered
The ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force Safety: Guidance for Federal Contractors and Subcontractors (Federal Contractor Order) or settings covered by the existing Healthcare ETS. Employers should be cognizant that they could maintain a variety of workplaces covered by the Federal Contractor Order, the Healthcare ETS or the new ETS.

Employees Not Covered
The ETS does not apply to any employees of a covered employer who work from home or in an outdoor setting, or who report to a workplace where there are no other individuals present, even though such employees will be counted for purposes of meeting the 100-employee threshold.

Compliance Deadline
Employers are required to ensure that their employees have received their second dose of the Pfizer or Moderna vaccine or single dose of the Johnson and Johnson vaccine by January 4, 2022. Employees who have not received their full vaccine course by this date must begin testing and producing negative test results, on at least a weekly basis, to their employer. All other employer obligations under the ETS, including masking, recordkeeping, and removal of COVID-positive employees, must be met by December 5, 2021.

To make it easier for employers to comply with the various federal vaccine mandates, the deadline for federal contractor vaccinations under the Federal Contractor Order has been extended to January 4, 2022 to align with the Healthcare ETS and the new ETS.

Below is a closer look at some of the requirements under the ETS:

Policy Requirements and Implementation
All covered employers must implement a policy mandating vaccinations or requiring testing on at least a weekly basis along with masking. Employers are permitted to mandate vaccinations for a subset of employees, while allowing other subsets of employees to choose between vaccination and testing.

Employers who mandate vaccinations must provide exceptions for employees who (1) have a medical contradiction to the vaccines, (2) have a medical necessity requiring a delay in vaccination, or (3) are entitled to a reasonable accommodation based on a disability or a sincerely held religious belief, observance or practice that conflicts with the vaccine requirement.

Employers must obtain acceptable proof of vaccinations and maintain the vaccination records along with a roster of each employee’s vaccination status. Additionally, employers must maintain a record of test results submitted by each employee. These documents are considered confidential medical records and must be protected as such under applicable state and federal law.

Acceptable forms of proof include (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 the immunization records from a public health, state, or tribal immunization information center, (5) 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), and (6) a signed attestation meeting specific criteria by an employee who is unable to obtain any of the documents listed in (1) through (5).

Paid Time Off for Vaccination
Covered employers must provide up to four hours of paid time off for employees to receive each COVID-19 vaccine dose, as well as reasonable time and paid sick leave to recover from any side effects after each dose.

Mandatory Testing
All covered employers must require weekly COVID-19 testing of any employee who is not fully vaccinated by January 4, 2022. This testing must occur at least weekly for any employee who is in the workplace at least once a week, or within seven days before returning to work after being away for a week or longer. The ETS also provides details on which tests will satisfy the testing requirement. Employers will not be required to pay for or provide tests under the ETS, though they may be required to do so under other laws, regulations or collective bargaining agreements.

Removal of COVID-positive Employees from the Workplace
Under the ETS, covered employers must require ALL employees (regardless of vaccination status) to report a positive COVID-19 test result or diagnosis from a healthcare provider, and immediately remove employees who test positive from the workplace until they meet the requirements for a safe return.

Face Coverings
Covered employers must require all unvaccinated workers to wear an appropriate face covering when indoors or in a vehicle with others for work purposes. Additionally, employers may not prevent employees from choosing to wear a face covering unless it creates a serious workplace hazard, such as interfering with the safe operation of equipment.

Employee Notices
The ETS requires covered employers to provide information to employees, in language and at a literacy level within their grasp, about (1) the ETS and the company’s policies and procedures to implement it, (2) the CDC document “Key Things to Know About COVID-19 Vaccines,” (3) information about protections from retaliation and discrimination, and (4) information about laws which provide criminal penalties for supplying false information.

Reporting Obligations
Covered employers must notify OSHA of any work-related COVID fatalities within eight hours of learning of them and of work-related COVID hospitalizations within 24 hours. Finally, employers must make available for review and copying purposes an employee’s vaccination records and COVID-19 testing results, as well as vaccination data across the workplace, to any employee or his or her designated representative.

Challenges Ahead
The ETS is expected to meet many legal challenges in lawsuits filed by state governments, employers, trade groups, religious organizations, and civil liberties advocates. Indeed, 24 state attorneys general indicated their intent to challenge the ETS.  We will update this post in the event of significant developments.

If you have questions about the new ETS, or if you would like assistance updating your policies to comply with it, please contact a member of our employment team:

Lorna Hebert               [email protected]         (617) 512-8401
Christy Kotowski      [email protected]   (510)-748-0930
Trish Lantzy                  [email protected]         (804) 683-1737
Natasha Lipcan           [email protected]         (203) 820-6754

Lorna Hebert (New England team) is an employment, labor, higher education, and litigation attorney with nearly 30 years of experience handling a broad range of complex employment and labor matters. Lorna advises clients on a wide range of employment matters, including workplace investigations, dispute resolution, hiring, performance management, discipline, terminations, reorganizations,  accommodations, employee benefits, wage and hour issues,  discrimination claims, policies and procedures, and training.

Christy Kotowski joined Outside GC’s California team as Senior Counsel in 2019. Based in the San Francisco Bay Area, Christy handles a broad range of complex workplace issues at the federal, state and local levels. Previously, she worked as in-house employment counsel for several large companies, and started her legal career in the Silicon Valley office of Morrison & Foerster, one of California’s oldest and largest law firms. 

Patricia Lantzy (Washington D.C. team) is a labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.

Natasha Lipcan (New York team) is an employment law attorney with more than 20 years of experience representing private employers in a broad range of employee-related matters. She handles a wide range of employment issues, including employment law compliance, organizational change, diversity and inclusion, employment-related agreements, arbitrations and litigations, wage and hour, workplace training and policies, and recruiting, hiring, managing and terminating employees.