Actions for Employers to Take Following Issuance of OSHA’s Vaccination and Testing Emergency Temporary Standard

The Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing emergency temporary standard (the ETS), effective Nov. 5, 2021, requires private employers with 100 or more employees to implement mandatory COVID-19 vaccination policies or policies that allow employees to choose whether to get vaccinated or undergo weekly testing and wear a face covering. Employers must comply with all requirements of the ETS by Dec. 5, 2021, except the testing requirements, which employers must comply with by Jan. 4, 2022. The stated purpose of the ETS is to minimize the risk of COVID-19 transmission in the workplace.

As of the date of this publication, numerous lawsuits have been filed challenging the ETS, and the U.S. Court of Appeals for the Fifth Circuit has temporarily suspended its implementation. Although the outcome of these litigations is uncertain, employers may want to consider preparing for compliance with the ETS. In this alert, we provide guidance to help employers prepare for compliance with the ETS.

Who Is Covered by the ETS?

The ETS applies to all private employers with 100 or more U.S.-based employees (regardless of work location) until the ETS expires. Workplaces that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety guidance (i.e., federal contractors and subcontractors) and the Healthcare ETS (i.e., health care workers) are not covered by this ETS. Note that a single employer may have some workplaces that are covered by the requirements for federal contractors and others that are covered by the ETS.

Employers should evaluate whether they currently meet the 100-employee threshold. The threshold is based on an employer’s companywide headcount, regardless of worksite location. Staffing agency employees do not count as employees of their host employer, but the host employer may require that temporary agencies ensure their employees comply with the ETS. Similarly, independent contractors do not count for purposes of coverage under the ETS. Employees who report to a workplace where other employees are not present, who work from home and who work exclusively outdoors count toward the 100-employee threshold but are not subject to the ETS’s vaccination or testing and face covering requirements.

Any employer that reaches the 100-employee threshold while the ETS is in effect will be required to comply with its terms. If an employer is covered but later falls below the threshold, the ETS remains in effect.

Vaccination Policies

The ETS generally requires employers to develop, implement and enforce a written vaccination policy mandating that all employees be vaccinated against COVID-19 unless they fall into one of three categories: (1) those for whom a vaccine is medically contraindicated; (2) those for whom medical necessity requires a delay in vaccination; and (3) those who are legally entitled to a reasonable accommodation, absent undue hardship, because of a disability or a sincerely held religious belief.

Employers are exempt from this requirement if they establish, implement and enforce a written policy allowing any employee not subject to mandatory vaccination to either choose to become fully vaccinated OR provide proof of weekly COVID-19 testing and wear a face covering while in the workplace (with limited exceptions). Thus, employers may choose between a mandatory vaccination policy and a vaccinate or test policy.

Employers that have existing vaccination policies should evaluate those policies to determine whether they satisfy the requirements of the ETS and update them accordingly. All such policies will need to be updated to comply with the employee notice provision discussed below.

Proof of Vaccination

Employers must ascertain the vaccination status of every employee. While employers cannot invite or facilitate fraud, they are not required to monitor for or detect fraudulent reporting of vaccination status.

Acceptable proof of vaccination status is (1) a record of immunization from a health care provider; (2) a copy of the COVID-19 Vaccination Record Card; (3) a copy of medical records; (4) a copy of immunization records from a public immunization information system; or (5) any other official documentation. Employers cannot accept proof of prior COVID-19 infection or presence of antibodies as proof of vaccination.

If an employee is unable to produce any of the forms of acceptable proof, employees are allowed to submit a signed and dated statement. The statement must (1) include an attestation of the employee’s vaccination status; (2) include a statement that the employee has lost and is not able to produce acceptable proof of vaccination status; and (3) include specific language (set forth in the ETS) that knowingly providing false information about vaccination status may subject them to criminal penalties. Because attestations are not permitted unless these specific requirements are met, a privacy objection to producing proof of vaccination will not suffice. Note that an employee who does not provide an acceptable form of proof of vaccination status or a valid attestation must be treated as not fully vaccinated.

Employers must maintain a record of each employee’s vaccination status (including those who are not fully vaccinated) in a roster and must preserve acceptable proof (hard or digital copy) of vaccination status for each employee. These records must be maintained like employee medical records, meaning they cannot be disclosed unless required or authorized by federal law, but they are not subject to OSHA’s retention requirements in that they must only be preserved while the ETS is in effect. Note that if an employer has maintained the documentation of fully vaccinated employees whose status it reviewed prior to Nov. 5, 2021, it does not need to obtain documentation of that vaccination status again.

Employer Support for COVID-19 Vaccination

Employers must provide support for COVID-19 vaccination by providing a reasonable amount of time to each employee for vaccination, including up to four hours of paid time during the workweek (which cannot be offset by other accrued leave time) as well as reasonable (generally two days) paid time to recover from side effects, which can be offset by accrued sick leave or a general bank of paid time off (but not vacation).

Testing and Face Covering Requirements for Employees Who Are Not Fully Vaccinated

Employers must ensure that employees who have not received the requisite number of primary vaccination shots by Jan. 4, 2022, including those with reasonable accommodations, undergo COVID-19 testing as follows:

Employees who come to work at least once every seven days where there are other people present must test for COVID-19 at least once every seven days and provide no less than weekly documentation (i.e., within seven days of the prior test).
Employees who do not report to work at least once every seven days must be tested within seven days of reporting to work and provide documentation to the employer prior to returning to the workplace.
Employers can only accept a test that is (1) cleared, approved or authorized by the FDA (e.g., a viral test); (2) administered in accordance with authorized instructions; and (3) not both self-administered and self-read, unless observed by the employer or a telehealth proctor. At-home tests read by employees are therefore insufficient.
Any unvaccinated employee who does not provide testing documentation must be removed from the workplace.
Employers must keep a record of all test results provided by employees, which are considered medical records but must only be preserved while the ETS is in effect.
Employers are not required to pay for any costs associated with testing, unless required by other laws or collective bargaining agreements. We expect that the Wage and Hour Division of the Department of Labor will be providing guidance about the implications of the ETS. And even though the ETS does not require employers to bear the cost of testing, some states either treat the cost of testing as a necessary business expense that the employer must reimburse, or would consider testing a required medical examination for which employers cannot shift the cost to employees.

Employers must ensure that employees who are not fully vaccinated, including those with a reasonable accommodation, also wear face coverings when indoors or in a car with another person for work unless:

They are in a room with floor to ceiling walls and the door shut
For the limited time they are eating or drinking
For identification purposes
If they are wearing a respirator or facemask (i.e., medical procedure masks)
Where the employer can show that the use of face coverings is infeasible or creates a greater hazard than it would not to wear a face covering, or
Where an employee cannot wear a face covering because of a disability or because it conflicts with a sincerely held religious belief

Employers are responsible for ensuring that employees properly wear their face covering. Similar to testing, employers are not required to pay for any costs associated with face coverings unless required by other laws or collective bargaining agreements.

Response to Positive Cases

Employees must promptly tell their employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 and must be immediately removed from the workplace (regardless of vaccination status) until they: (1) receive a negative viral diagnostic test – most commonly a PCR test – (after a positive antigen test only); (2) meet the CDC’s work criteria in its “Isolation Guidance;” (3) or receive a recommendation to return to work from a licensed health care provider. Employers are not required to provide paid time off for removal from the workplace due to a positive test unless required by other laws or collective bargaining agreements. Note, however, that many employers in New York are obligated to provide paid COVID-19 sick leave based on size and income, as discussed in a prior alert. Employers are not required to conduct contact tracing, but are encouraged to follow CDC guidance and/or local requirements.

Employee Notice Regarding ETS Requirements

Employers must inform every employee, in a language and literacy level they understand, of (1) all of the requirements of the ETS and any policies or procedures that are used to implement the ETS; (2) the “Key Things to Know About Covid-19 Vaccines”; (3) protections against retaliation and discrimination; and (4) the criminal penalties for knowingly supplying false statements or documentation. It is up to the employer how to communicate this information and there are no record-keeping requirements.

Employer Reporting Requirements

Employers are required to report to OSHA every work-related COVID-19 fatality within eight hours of learning about it and every work-related COVID-19 inpatient hospitalization within 24 hours of the employer learning about it. A work-related COVID-19 fatality or hospitalization would be, for example, one related to a workplace outbreak (see 29 CFR 1904.5 to determine “work-relatedness”).

Employers have to be ready to make the following disclosures:

Employees or those they have given consent to are entitled to their own COVID-19 vaccination documentation and any test results that they have provided.
By the next business day following the request, employees or their representatives are entitled to know the number of people in the workplace and the number of employees who are fully vaccinated.
Within four business hours, OSHA is entitled to see an employer’s policy implementing the ETS and to know the number of people in the workplace and the number of employees who are fully vaccinated.
By the next business day following the request, OSHA is entitled to copies of all of the records and documents required to be maintained under the ETS.

Are There Preemption Implications?

The ETS is intended to preempt states from adopting and enforcing workplace requirements relating to health issues of vaccination, wearing face coverings and testing for COVID-19 except under the authority of federally approved state OSHA plans, which are required to contain standards that are at least as effective as the federal OSHA requirements. The ETS is intended to preempt any state or local requirement banning or limiting an employer from requiring vaccination, face coverings or testing.

The ETS establishes minimum requirements for employers. It does not supplant, for example, collective bargaining agreements that have negotiated terms that exceed the requirements of the ETS.

Employers with employees who are covered by the Healthcare ETS should follow the Healthcare ETS.

What Else Do I Need to Know?

Every citation for a violation of the ETS could result in a fine of up to $13,653. Willful or repeat violations could result in fines of up to $136,532.
Even though the ETS takes effect immediately, it is still a proposed rule and not yet a final standard. OSHA is seeking comment on all aspects of the ETS before it will be adopted as a final standard, so there could be changes to the ETS in the near future. In addition, OSHA will continue to monitor trends as the pandemic evolves and may update the ETS as appropriate.
The ETS could result in a situation in which someone is entitled to a reasonable accommodation from vaccination and also is entitled to a reasonable accommodation to avoid testing and wearing a face covering. In that situation, and in any other situation calling for a reasonable accommodation, employers should consult the Equal Opportunity Commission’s website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Employers that are required to comply with the mandates of the Safer Federal Workforce Task Force COVID-19 Workplace Safety guidance (i.e., federal contractors and subcontractors) should note that the requirements differ. One crucial distinction is that the guidance for contractors does not contain a testing provision and instead requires mandatory vaccination.