OSHA Issues, and Fifth Circuit Stays, Emergency Temporary Standard for COVID-19 Vaccination of Private Sector Employees

Written by Gary McLaughlin and Eric Engelman

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued its long-awaited COVID-19 vaccination rule for private employers. The OSHA COVID-19 vaccination and testing emergency temporary standard (“ETS”) applies to all employers with 100 or more employees, and requires that employees be fully vaccinated for COVID-19, or comply with testing and face covering requirements.  The ETS was published in the Federal Register on November 5, 2021. That same day, however, the Fifth Circuit Court of Appeals in New Orleans granted an emergency stay of the ETS in response to a lawsuit filed by several companies and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah.  The Fifth Circuit merely stated that “the petitions give cause to believe there are grave statutory and constitutional issues” with the ETS, and set a schedule for further briefing on the petitioner’s motion for a permanent injunction. 

While legal challenges are pending, we recommend that employers continue to prepare to comply with the ETS.  Below is a summary of the key requirements of the ETS.  The full text of the ETS can be found here, and a FAQ prepared by OSHA can be found here.

Deadlines

  • December 5, 2021 – Employers must begin complying with all provisions of the ETS except for the vaccination and testing requirement.  This includes, for example, face coverings for unvaccinated workers and providing leave for vaccination.
  • January 4, 2022 – Employers must comply with vaccination and testing requirements.  Prior to that date, unvaccinated workers do not need to be tested.

Application

  • The ETS applies to all employers “with a total of 100 or more employees at any time [the ETS] is in effect.”
    • The 100-employee threshold includes all US employees, regardless of location, and regardless of whether an employee is actually subject to the ETS (e.g. employees who work exclusively from home or outdoors count towards the threshold but are not subject to the ETS).
    • Part-time employees count towards the threshold.
    • Temporary and seasonal employees count towards the threshold if employed while the ETS is in effect.
    • Independent contractors do not count towards the threshold.
    • If an employer with more than 100 employees subsequently drops below 100, it will continue to be subject to the ETS.
    • Employees provided through a staffing agency do not count towards the threshold for the “host employer,” but do count towards the threshold for the staffing agency.
  • Exceptions:
    • The ETS does not apply to employees:
      • Who do not work where other individuals such as coworkers or customers are present;
      • While working from home; or
      • Who work exclusively outdoors.
    • The ETS does not apply to:
      • Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
      • Settings where any employee provides healthcare or healthcare support services when subject to the requirements of OSHA’s ETS for healthcare workers (29 C.F.R. § 1910.502) (NOTE: The Centers for Medicare & Medicaid Services (“CMS”) issued a parallel rule applicable to healthcare workers, which eliminates the testing option).
  • The ETS applies to both unionized and nonunionized workforces; however, the ETS does not supplant CBAs, which may have measures that exceed the ETS requirements.

Vaccination Requirements

  • Employers must establish and enforce a “written mandatory vaccination policy” requiring vaccination of all employees (including new employees as soon as practical), or regular testing and face coverings for unvaccinated employees.  Employers are permitted, but not required, to offer the testing and face covering option.
  • Exemptions from vaccination must be provided to those employees:
    • For whom vaccine is medically contraindicated;
    • For whom medical necessity requires delay in vaccination; or
    • Who are entitled to a reasonable accommodation under federal law because of disability or sincerely held religious beliefs
  • Acceptable vaccinations include those:
    • Approved or authorized for emergency use by the FDA; or
    • Listed for emergency use by the World Health Organization (“WHO”)
  • For purposes of the ETS, a person is considered fully vaccinated two weeks after receiving the final dose in their vaccination series.
  • Employers must determine vaccination status of each employee. Acceptable proof of vaccination includes:
    • Record of immunization from a healthcare provider or pharmacy;
    • COVID-19 Vaccination Record Card;
    • Copy of medical records documenting the vaccination;
    • Copy of immunization records from a public health, state, or tribal information system; or
    • Copy of any other official documentation containing (i) the type of vaccine administered; (ii) the dates the vaccine was administered; and (iii) the name of the healthcare provider/clinic site administering the vaccine.
    • Employees who cannot produce an acceptable form of proof may also provide a signed and dated statement attesting (i) to their vaccination status; (ii) that they have lost and are otherwise unable to provide one of the acceptable forms of proof; and (iii) including the language “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
  • Employees who do not provide an acceptable form of proof must be treated as not fully vaccinated.
  • Booster shots are not currently part of the vaccination requirement.

Testing Requirements

  • Employers must ensure that each employee who is not fully vaccinated is tested once every 7 days, and provides a new test result within 7 days of when they last provided a test result.
  • Employees who have not reported to the workplace for more than a week must be tested within 7 days prior to returning to the workplace and provide documentation of the test result to their employer upon their return.
  • Acceptable tests include those that:
    • Are cleared, approved, or authorized for emergency use by the FDA;
    • Are administered in accordance with the authorize instructions; and
    • Are not both self-administered and self-read unless observed by an employer or authorized telehealth proctor.
      • Examples of tests satisfying this requirement include those where the specimens are processed by a laboratory; where the specimen collection and processing is observed by an employer; proctored over-the-counter tests; and point of care tests.
      • Employees may both self-administer and self-read the test results if observed by the employer or an authorized telehealth proctor.

Face Covering Requirements

  • Employees who are not fully vaccinated must wear face coverings when indoors and/or occupying a vehicle with another person.
  • Exceptions:
    • When the employee is alone in a room with floor to ceiling walls and a closed door;
    • For security identification;
    • For limited time while eating or drinking; or
    • If it is infeasible or creates a greater hazard.
  • Employers must ensure that the face covering fully covers the nose and mouth and is replaced when wet, soiled, or damaged.
  • Employers must allow vaccinated employees to wear face coverings if the employee chooses, unless it would “create a hazard of serious injury or death.”
  • The ETS separately defines “face covering” (e.g. a non-medical cloth or clear face covering), “facemask” (e.g. a surgical, medical procedure, or dental mask), and respirator (e.g. certified personal protective equipment, including N95s).  Wearing a facemask or respirator satisfies the face covering requirement.  If respirators are used, the employer must comply with 29 C.F.R. § 1910.504 (the mini respiratory protection program).

Time Off and Costs

  • Time off: Employers must provide:
    • Reasonable time off for vaccination
      • Employers may not require employees to use existing leave for vaccinations.
    • Up to 4 hours paid time, including travel time, at “regulate rate of pay” to get vaccinated
    • Reasonable time and paid sick leave for recovery from side effects of vaccination.
      • Employers can require employees to use existing leave balances to recover from side effects.
  • Testing: The ETS does not require employers to pay for any costs associated with testing; but the ETS notes that payment may be required by other laws or CBAs.
  • Face Coverings: The ETS does not require employers to pay for costs associated with face coverings (even where employees are required to replace wet, soiled, or damaged face coverings); but payment may be required by other laws or CBAs.

Positive Test Results

  • Regardless of vaccination status, employees who test positive for or are diagnosed with COVID-19 must “promptly notify” their employer.
  • Employer must immediately remove a positive/diagnosed employee from the workplace until the employee (i) receives a negative NAAT test for confirmatory testing; (ii) satisfies the CDC’s isolation guidance; or (iii) receives a recommendation to return to work from a healthcare provider.
  • The ETS does not require employers to provide paid time off to employees who are removed from work for testing positive; but payment may be required by other laws or CBAs.

Employee Information Requirements

  • Employers are required to inform each employee about:
    • The requirements of the ETS;
    • COVID-19 vaccine safety, by providing the CDC document “Key Things to Know About COVID-19 Vaccines;”
    • OSHA prohibitions against retaliation or discrimination; and
    • Prohibitions of 18 U.S.C. 1001 and OSH act for supplying false statements or documentation.

Record Requirements

  • Employers must maintain records of each employee’s vaccination status, acceptable proof of vaccination for each employees who is partially or fully vaccinated, a roster of each employee’s vaccination status, and each test result provided an employee. These records must be maintained while the ETS is in effect.
  • OSHA considers vaccination records and testing results to be confidential employee medical records.
  • Employers must provide to employees or employee representatives the aggregate number of fully vaccinated employees at a workplace, along with the total number of employees at the workplace, by the next business day after such a request.
  • Employers must provide employees, or anyone having the written authorized consent of an employee, the employee’s vaccine documentation and test results by the next business day after such a request.
  • Within 4 business hours of a request from OSHA/DOL, employers must produce:
    • A copy of the written vaccination policy required by the ETS.
    • The aggregate number of fully vaccinated employees at a workplace along with the total number of employees at the workplace.
  • For any other ETS required records requested by OSHA/DOL, the employer must provide them by the end of the next business day.

OSHA Reporting Requirements

  • Employers are required to report each work-related COVID-19 fatality within 8 hours of the employer learning about it and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about it.
  • NOTE: It is unclear whether this changes prior OSHA COVID-19 reporting guidance. 

State and Local Laws

  • The ETS expressly states that its purpose is to preempt inconsistent state and local requirements and to establish minimum requirements that employers must implement.
  • States (such as California) with their own approved state occupational safety and health plans must adopt the requirements of the ETS, or alternative measures that are “at least as effective,” no later than December 5, 2021 (30 days after publication of the ETS), in which case the ETS requirements will be enforced by the state OSHA.

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