Legislation

COVID-19 Vaccine Mandate and Testing OSHA Emergency Temporary Standard Released

Eye on Washington Article contributor Eye on Washington Team

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On November 4, 2021, OSHA released an emergency temporary standard (ETS) to implement the requirements announced in the Executive Order that will be important for employers to understand and implement.

NOTE: The ETS was stayed on November 12, 2021, by order of the U.S. Court of Appeals for the Fifth Circuit. The various legal challenges to the ETS were subsequently consolidated in the U.S. Court of Appeals for the Sixth Circuit for further proceedings. On December 17, 2021, the Sixth Circuit dissolved the stay, allowing OSHA to resume efforts to implement the ETS. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption.

OSHA has announced that it would not take action against businesses for noncompliance with any portion of the ETS before January 10, 2022, and specifically with respect to the ETS's testing requirements, before February 9, 2022, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

Companies with 100 or more employees that fall within the requirements of the ETS will want to prepare to come into compliance with the ETS by no later than the extended deadlines provided by OSHA. For those employers in state and localities that prohibit or restrict vaccination or face covering requirements, those employers should discuss planning and preparation options with their internal or external employment counsel.

On September 9, President Biden signed an Executive Order implementing several new policies to reduce the spread of COVID-19. The Order noted that the Occupational Safety and Health Administration (OSHA) would issue guidance requiring employers with 100 or more employees to require their employees to either be vaccinated against COVID-19 or produce a weekly negative test. On November 4, 2021, OSHA released an emergency temporary standard (ETS) to implement the requirements announced in the Executive Order. The ETS was published in the Federal Register on November 5, 2021, and became effective immediately.

Following is a summary of the provisions of the ETS that will be important for employers to understand and implement.

Compliance Deadlines

Employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines, by January 4, 2022. Employers who do not impose a vaccination mandate must ensure that any unvaccinated employees undergo testing (at least weekly) by no later than January 4, 2022. For purposes of the ETS, employees are fully vaccinated immediately upon receiving the second or final dose, without a two-week waiting period. (Booster shots are not required by the ETS.)

Employers must comply with all other provisions of the ETS, including the requirements related to masking, recordkeeping, and removal of COVID-positive employees, by December 6, 2021.1

ETS Applies Only to Employers with 100 or More Employees

This ETS applies to all employers with a total of 100 or more employees at any time the ETS is in effect, unless the employer falls under one of the exemptions outlined below. Based on this scope, employers in nearly every sector are expected to be covered by this ETS.

Employees Exempted from the Requirement

Some workers are exempted from the ETS's requirements:

  1. workers who do not report to a workplace where other individuals (e.g., coworkers, customers, or clients) are present;
  2. workers who telework from their homes;
  3. workers who work exclusively outdoors –except for de minimis use of indoor spaces, such as restrooms, and do not occupy vehicles with other workers for work purposes;
  4. workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, as these workers are already covered by a vaccination mandate; and,
  5. settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502), since these workers are also covered by a vaccination mandate.

Determining the 100 Employee Threshold

The ETS applies to large employers (100+ employees), and does not depend on the number of workplaces or office locations. In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees' vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not.

  • Single corporate entity with multiple locations

All employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS.

  • Traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated

The franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count "corporate" employees, and each franchisee would only count employees of that individual franchise.

  • Two or more related entities

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.

  • Staffing Agency

In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. For enforcement purposes, traditional joint employer principles would apply where both employers are covered by the ETS.

  • Multi-employer worksite

On a typical multi-employer worksite such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only count its own employees. That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day.

The ETS provided a number of examples to assist employers in determining whether they meet the 100-employee threshold:

  • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
  • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
  • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
  • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
  • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
  • If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)

Relevant Time for Making the 100-Employee Count Determination

The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard, which is November 5, 2021. If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be covered and need to comply. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer's workforce.

Employer Policy on Vaccination

ETS requires each covered employer to establish and implement a written mandatory vaccination policy, unless the employer adopts an alternative policy requiring COVID-19 testing once every seven days and face coverings for unvaccinated employees.

To meet the definition of "mandatory vaccination policy", the policy must require: vaccination of all employees, including all new employees as soon as practicable, other than those employees: (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious belief, practice, or observance that conflict with the vaccination requirement.

COVID-19 Testing for Unvaccinated Employees

The ETS requires employers to ensure that employees who are not fully vaccinated and who report at least once every seven days to a workplace where other individuals are present (e.g., coworkers or customers) are:

  1. tested for COVID-19 at least once every seven days; and
  2. provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date the employee last provided a test result.

Employers must also ensure that employees who are not fully vaccinated and do not report during a period of seven or more days to a workplace where other individuals are present are:

  1. tested for COVID-19 within seven days prior to returning to the workplace; and
  2. provide documentation of that test result upon return to the workplace.

If an employee does not provide documentation of a COVID-19 test result as required by the ETS, the employer must remove the employee from the workplace until they provide a negative test result.

In addition, employees need not require that an employee undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis. If an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must remove the employee from the workplace immediately and until they meet criteria for return.

Acceptable COVID-19 Tests

Employees who are not fully vaccinated must be tested with a COVID-19 test that is: (i) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA) by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g. a viral test); (ii) administered in accordance with the authorized instructions; and (iii) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection is either done or observed by an employer.

Face Coverings

The ETS requires all employees who are not fully vaccinated to wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except:

  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 face masks; or
  4. where the employer can show that the use of face coverings is infeasible or creates a greater hazard.

Face covering means a covering that completely covers the nose and mouth of the wearer, excluding face shields, which is made with two or more layers of a breathable fabric that is tightly woven, is secured to the wearer's head with ties, ear loops, or elastic bands that go behind the head, and is a solid piece of material without slits, exhalation valves, visible holes, or other openings in the material. This definition encompasses face coverings that otherwise meet the definition of face covering, but include clear plastic windows, such as those utilized by persons communicating with those who are deaf or hard-of-hearing or when seeing a person's mouth is otherwise important. Face coverings can be manufactured or homemade, and they can incorporate a variety of designs, structures, and materials. Face coverings can be disposable or reusable.

The employer must permit the employee to wear a respirator instead of a face covering whether required or not. In addition, the employer may provide respirators or face coverings to the employee, even if not required. In such circumstances, where the employer provides respirators, the employer must also comply with § 1910.504, Mini respiratory protection program.

Employers cannot prohibit any employee – even those who are vaccinated – from wearing a mask.

Requirements for Written Policy

The ETS requires the employer to inform each employee, in a language and at a literacy level the employee understand about:

  1. the requirements of the ETS, as well as any employer policies and procedures established to implement the ETS;
  2. COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing each employee the CDC document, "Key Things to Know About COVID-19 Vaccines," available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (CDC, October 7, 2021). The employer may choose to provide this information to employees in either an electronic or print format. The CDC currently provides this document in multiple languages; however, employers may need to provide additional translations if necessary;
  3. the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations;
  4. the requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act. These two provisions work together to protect employees from retaliation for engaging in activities protected by OSHA statute or regulation. The first of these provisions, section 1904.35(b)(1)(iv), prohibits employers from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness. The second provision, section 11(c) of the OSH Act, prohibits employers from discriminating or retaliating against employees for exercising rights under, or as a result of actions required by, the ETS, including filing complaints or reporting work-related injuries;
  5. the procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider, as well as the procedures to be used for requesting records (more details below);
  6. information regarding the prohibitions of 18 U.S.C. 1001 and Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation. False statements or documents made or submitted for purposes of complying with policies required by this ETS could fall under either or both of these statutory provision; and,
  7. additional information to unvaccinated employees, including information about the employer's policies and procedures for COVID-19 testing and face coverings.

When an employer's policies or procedures change, the employer must provide any updated or supplemental information to employees.

Employee Notification to Employer of a Positive COVID-19 test and Removal of Employee

Employers must require employees to promptly notify the employer if the employee receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.

Employers must immediately remove any employee from the workplace who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. The employee must be removed until the employee: (i) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; (ii) meets the return to work criteria in CDC's "Isolation Guidance"; or (iii) receives a recommendation to return to work from a licensed healthcare provider.

Determining Employee's Vaccination Status

The ETS requires employers to determine the vaccination status of each employee. Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. Acceptable proof of vaccination status is:

  1. the record of immunization from a health care 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 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).

A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. Specifically, in instances where an employee is unable to produce acceptable proof of vaccination, per above, it is acceptable for the employee to provide a signed and dated statement by the employee, subject to criminal penalties for knowingly providing false information: (1) attesting to their vaccination status (fully vaccinated or partially vaccinated); and (2) testing that they have lost and are otherwise unable to produce proof required by the ETS.

Finally, when an employer has ascertained employee vaccination status prior to the effective date of the ETS through another form of attestation or proof, and the employer retained records of that ascertainment, the employer is exempt from the requirements of collecting proof of vaccination status. The exemption applies only for each employee whose fully vaccinated status has been documented prior to the effective date of the standard. For example, an employer may have asked each employee to self-report their vaccination status without requiring the employee to provide any form of proof. If that self-reporting was through oral conversation only, and not documented in some way, the employer is not considered to have retained records of that ascertainment for the purposes of this ETS. However, if, for example, the employer had the employees provide their vaccine information on a dated form, or through individual emails retained by the employer, or on an employer portal specifically created for employees to provide documentation status, or the employer created and retained some other means of documentation, the employer is considered to have retained records of ascertainment for the purposes of this ETS. Even if this exemption applies, the employer must still develop a roster of each employee's vaccination status and include on that roster the employees for whom it had previously determined and retained records of vaccination status.

Record Keeping Requirements

The employer must maintain a record and a roster of each employee's vaccination status. Employers must also maintain a record of each test result provided by each employee. This information is subject to applicable legal requirements for confidentiality of medical information. These records must be preserved while the ETS is in effect.

Employee Access to Records and Information Regarding Workplace Vaccination Status

The employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and to anyone having written authorized consent of that employee by the end of the next business day after a request.

The ETS also requires the employer to make the following information available to an employee or an employee representative on request: (1) the aggregate number of fully vaccinated employees at a workplace and (2) the total number of employees at that workplace. This information must be made available to these individuals by the end of the next business day after a request. Employers will be able to utilize the roster of each employee's vaccination status they are required to maintain to provide this information promptly to a requester.

Employee, for purposes of this requirement, includes former employees.

Requesters are entitled to one free copy of each requested record. After receiving an initial free copy of a requested record or document, an employee, former employee, or representative may be charged a reasonable fee for copying duplicative records. However, no fee may be charged for an update to a previously requested record. It should be noted that each COVID-19 test is a separate record, and, as such, the employee or the representative is entitled to one free copy of each COVID-19 test record.

Access to OSHA of Written Vaccine Policy and Aggregate Numbers

Employers must provide the written vaccine policy required by the ETS and both the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace, to the Assistant Secretary for examination and copying within 4 business hours of a request.

Employer Support for Employee Vaccination

The ETS requires all covered employers to support vaccination by providing employees with reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid leave to recover from vaccination side effects.

OSHA understands that employees may need much less than four hours to receive a primary vaccination dose, for example, if vaccinations are offered on-site. However, OSHA also understands that, in some circumstances, an employee may need more than four hours to receive a primary vaccination dose, in which case the additional time, as long as it is reasonable, would be considered unpaid but protected leave. The employer cannot terminate the employee if they use a reasonable amount of time to receive their primary vaccination doses, even if that exceeds 4 hours. The employee may use other available leave time (e.g., sick leave or vacation time) to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose. Additionally, if an employer does not specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects. An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

Employers are not, however, obligated by this ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. This could include the costs of travel to an off-site vaccination location (e.g., a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose. Because employers are required to provide reasonable time for vaccination during work hours, if an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours. However, even if employees receive a primary vaccination dose outside of work hours, employers must still afford them reasonable time and paid sick leave to recover from side effects that they experience during scheduled work time.

Costs Associated with Testing and Face Coverings

Where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings. That is, employees will be required to bear the costs if they choose to be regularly tested and wear a face covering in lieu of vaccination, though state or local law, regulation or orders or agreements, such as collective bargaining agreements, could require otherwise.

The ETS does not require the employer to provide paid time off to any employee for removal from work as a result of the employee's refusal/failure to provide documentation of a COVID-19 test result as required by the ETS.

Reporting COVID-19 Fatalities and Hospitalizations to OSHA

Employers are required to report to OSHA each work-related COVID-19 fatality, within 8 hours of the employer learning about the fatality, and each work-related COVID-19 in-patient hospitalization, within 24 hours of the employer learning about the in-patient hospitalization.

The ETS Preempts State and Local Laws

OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Thus, the standard is intended to preempt states and local governments from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan. OSHA expressly intends to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face coverings, or testing.

State Plans

When Federal OSHA promulgates an emergency temporary standard, States and U.S. Territories with their own OSHA-approved occupational safety and health plans ("State Plans") must either amend their standards to be identical or "at least as effective as" the new standard, or show that an existing State Plan standard covering this area is "at least as effective" as the new Federal standard.

The ETS imposes new requirements to protect workers across the nation from COVID-19. Adoption of this ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the promulgation date of the final Federal rule, and State Plans must notify Federal OSHA of the action they will take within 15 days.

The State Plan standard must remain in effect for the duration of the Federal ETS. As with all non-identical State Plan standards, OSHA will review any comparable State standards to determine whether they are at least as effective as this ETS.

FAQ's

OSHA has published FAQs to assist in understanding of the ETS: https://www.osha.gov/coronavirus/ets2/faqs

ADP Compliance Resources

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Updated on December 21, 2021

1 Note that a prior version of this article listed this deadline as December 5, 2021. When OSHA published the ETS in the Federal Register, the compliance deadline was moved to December 6, 2021, for certain requirements.