On November 4, 2021, the Occupational Safety and Health Authority (“OSHA”) issued the 490-page Emergency Temporary Standard for COVID-19 Vaccinations and Testing (“ETS”), which is to be effective as of November 5, 2021. The ETS will remain in effect for six months, when it is expected to become a permanent rule.
The ETS itself is available here. OSHA has also produced a FAQ addressing questions regarding the ETS and made available example policies that would comply with the ETS. One policy imposes a vaccine mandate and the other policy permits employees to elect to not be vaccinated provided they meet specified masking and testing requirements.
The following are the key takeaways from the ETS:
EFFECTIVE DATE; DEADLINE FOR COMPLIANCE
The ETS is effective as of November 5, 2021. The following deadlines for compliance apply:
- December 5, 2021: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
- January 4, 2022: Testing for employees who have not received all doses required for a primary vaccination
WHICH EMPLOYERS ARE COVERED – EMPLOYERS WITH 100 OR MORE EMPLOYEES
The ETS applies to all employers with 100 or more employees during the time that the ETS is in effect. If an employer has less than 100 employees at the time the ETS becomes effective, the employer is not subject to the ETS.
However, if that employer’s employee count subsequently increases to more than 100 during the time that the ETS is in effect, that employer will become subject to the ETS. Once an employer becomes subject to the ETS, that employer will remain subject to the ETS so long as it is in effect, even if their employee count drops below 100. For example, an employer that has 103 employees on the effective date of the standard, but then loses four within the next month, would continue to be covered by the ETS.
Definition of Employee
The term “employee” includes all full and part time employees of an employer. If an employer has multiple work locations, all employees at all locations are counted for purposes of determining if the ETS applies to that employer. All employees are counted, regardless of their vaccination status. Independent contractors and employees of staffing agencies do not count toward the company total.
For worksites where there are multiple employers (such as construction sites), each company represented – the worksite owner, the general contractor, and each subcontractor – would only need to count its own employees, and the worksite owner and general contractor would not need to count the total number of workers at each site.
Parent Companies, Holding Companies, and Sister Companies
OSHA has not specifically stated whether employees of subsidiaries and sister companies will be aggregated for purposes of determining if the ETS applies. Instead, the ETS provides that two or more related entities may be regarded as a single employer 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. This is a factual determination that will be dependent on your specific corporate structure.
OSHA Examples Of Employers Subject To ETS
OSHA has provided the following examples of when and how the ETS would apply to an employer:
- 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 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
- if an employer has 102 employees and only three ever report to an office location, that employer would be covered.
- if an employer has 150 employees and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
- 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 1 or 2 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.
- if a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
- if a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
EMPLOYERS THAT ARE NOT COVERED BY THE ETS
The ETS does not apply to:
- federal contractor employees that are subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- healthcare employees subject to the requirements of § 1910.502;
- employees who do not report to a workplace where other individuals such as coworkers or customers are present;
- employees working from home; and
- employees who work works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office. “Outdoors” does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite. However, an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of the ETS. Likewise, if an employee works primarily outdoors but routinely occupies vehicles with other employees as part of work duties, that employee is subject to the ETS.
REQUIREMENTS OF THE ETS
Employers Must Adopt A Mandatory Vaccination Policy Or A Policy Requiring Employees Who Are Not Fully Vaccinated To Mask And Be Tested Weekly
The ETS requires employers to establish and implement a written policy that requires employees to either (1) be fully vaccinated or (2) provide proof of regular testing for COVID-19 and wear a mask. The ETS recognizes that employees may be entitled to reasonable accommodations, absent undue hardship, from the mandates of the required policy.
Accordingly, an employer’s written policy will meet the requirements of the ETS if it
- requires the vaccination of all employees, including vaccination of 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) who are legally entitled to a reasonable accommodation, OR
- permits employees to choose between vaccination and COVID-19 testing and masking.
Different Policies May Apply To Different Workplaces
Employers may implement vaccination policies that differ by location or type of business operation. For example, an employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework).
Definition Of Fully Vaccinated
For purposes of the ETS, “fully vaccinated” means it has been at least two weeks since the employee completed their primary vaccination course with a COVID-19 vaccine that has been approved by the FDA or WHO, i.e. two weeks after the second shot of the Pfizer or Moderna vaccines or one week after the Johnson & Johnson vaccine. The ETS does not (currently) require a booster to be deemed fully vaccinated.
“Partially vaccinated” means someone who has started a primary vaccination series but not completed it (e.g., has received one dose of a two-dose series) or has completed their primary vaccination and two weeks have not elapsed since the last dose of the primary vaccination.
Documentation of Vaccination Status; Record Retention
The ETS requires employers to determine the vaccination status of its employees. The ETS instructs that the employer can do so by (1) requiring the employee to submit written proof of their vaccination status or (2) receiving attestation by the employee as to their vaccination status where the employee cannot provide written proof.
Acceptable proof of vaccination status is:
- the record of immunization from a health care provider or pharmacy;
- a copy of the COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- 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).
If the employee cannot provide written proof of their vaccination status because, for example, they lost their vaccination card, the attestation must be in the form of a “signed and dated” statement, subject to criminal penalties for knowingly providing false information, attesting to
- their vaccination status (fully vaccinated or partially vaccinated); and
- that they have lost and are otherwise unable to produce proof required by the ETS.
If an employee cannot provide either of these forms of proof, the employer must treat the employee as not fully vaccinated.
The employer must maintain a record of each employee’s vaccination status and must preserve proof of vaccination for each employee who is fully or partially vaccinated, including a roster of each employee’s vaccination status. This information is subject to applicable legal requirements for confidentiality of medical information.
Employers Are Required To Provide Four Hours of Paid Time Off For Vaccinations
The ETS requires employers to give employees up to four (4) hours, including travel time, or paid time off, at the employee’s regular rate of pay to get vaccinated.
If the employee does not get vaccinated during regular working hours, i.e. they get vaccinated during their time off, the employer does not need to pay them for the time they spend getting vaccinated.
Employers do not need 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.
Employers Are Required To Provide A “Reasonable” Amount Of Paid Time Off For Recovery From Side Effects – Two Days of Sick Leave Will Be Presumed To Be “Reasonable”
The employer must also provide reasonable time and paid sick leave to recover from side effects experienced following any vaccination dose.
The employer can require the employee to use accrued paid time off or sick leave (“PTO”) for this purpose, but cannot require an employee to accrue negative PTO. Accordingly, if an employee does not have any PTO that they can use and they need time off to recover from a vaccine side effect, the employer must provide them additional paid sick leave to do so.
Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.
Employees Who Are Not Fully Vaccinated Must Be Tested Every Seven Days
Employees who are not fully vaccinated must be tested at least once every week and provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result. Employees who are partially vaccinated are also required to be tested weekly until they are fully vaccinated.
If an employee does not provide documentation of a test result, the employer must “keep that employee removed from the workplace until they provide a test result.”
If an employee is not going to be in a workplace where other employees or customers are going to be present within the next seven (7) days, they do not need to be tested until they are going to return to the workplace. They will need to be tested seven (7) days before they return to the worksite.
Accordingly, if an employee is going on vacation for 14 days, they would not need to submit a test on day one of their vacation, but would need to get tested on day 7, because they would be returning to work within seven days after that test.
Exception to Testing Requirement
If an employee receives a positive COVID-19 test, or is otherwise diagnosed by a health care provider as having COVID-19, that employee does not have to undergo COVID-19 testing for the following 90 days.
COVID-19 Vaccination Tests, Including At-Home Tests, Must Be Verified/Proctored By The Employer
To be a valid COVID-19 test, the COVID-19 test must be:
- cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARSCoV- 2 virus (e.g., a viral test);
- administered in accordance with the authorized instructions; and
- not be 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 and processing is either done or observed by an employer.
If an over-the-counter (OTC) test is being used, employers may require that employees perform and read their own OTC test while an authorized employee observes the administration and reading of the test to ensure that a new test kit was used, that the test was administered properly, and to witness the test result.
The ETS Does Not Require Employers To Pay For Testing – State Or Local Law May Require The Employer To Do So
Employers are not required to pay for costs associated with testing, although other regulations, state and local law, may require them to do so.
Employees Who Test Positive For COVID-19 Or Fail To Be Tested Timely Must Be Removed From The Workplace
Employers must require employees to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed health care provider.
Any employee who has a positive COVID-19 test, or is diagnosed as having COVID-19 by a licensed health care provider, must be immediately removed from the workplace until that employee (i) receives a negative result on a COVID-19 nucleic acid amplification test, (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.
If an employee does not provide the required COVID-19 test results, they must be removed from the workplace until they provide a test result. Employers must maintain records of the test results.
The ETS does not require employers to provide paid time off for employees who test positive for COVID-19, but paid time may be required by other laws, regulations or CBAs.
The ETS also incorporates by reference and requires mandatory compliance with the CDC’s February 18, 2021 “Isolation Guidance,” which can be found here: www.osha.gov/coronavirus/ets/ibr. Compliance with the CDC’s February 18, 2021 “Isolation Guidance, is required.
Employees Who Are Not Fully Vaccinated Must Mask While Indoors
Employees who are not fully vaccinated must wear masks while indoors at a workplace or when occupying a vehicle with another person for work purposes. A workplace includes the entire site (including outdoor and indoor areas, a structure or a group of structures) or an area within a site where work or any work-related activity occurs (e.g., taking breaks, going to the restroom, eating, entering or exiting work).
The workplace includes the entirety of any space associated with the site (e.g., workstations, hallways, stairwells, breakrooms, bathrooms, elevators) and any other space that an employee might occupy in arriving, working, or leaving. It does not include employees’ residences.
Exceptions To Masking Requirements
The ETS provides for the following exceptions to this masking requirement. An employee does not need to wear a mask when:
- they are alone in a room with floor to ceiling walls and a closed door;
- for a limited time while eating and drinking;
- when wearing a respirator or facemask;
- when the employer can show that the use of face coverings is infeasible or creates a greater hazard.
The employer must require employees to wear masks that:
- fully cover the employee’s nose and mouth;
- are made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source);
- are secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; and
- are a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings.
Masks must be replaced when wet, soiled, or damaged. An employer cannot prohibit customers or visitors from wearing face coverings.
Employers are not required to pay for any costs associated with face coverings; however employer payment for face coverings may be required by other laws, regulations, or CBAs.
EMPLOYEES MUST BE NOTIFIED OF REQUIREMENTS OF THE ETS
The employer must inform each employee, in a language and at a literacy level the employee understands, about (i) the requirements of the ETS, (ii) COVID-19 vaccine efficacy, 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; (iii) the OSHA prohibition against retaliation or discrimination; and (iv) the prohibition against knowingly supplying false statements or documentation.
OSHA AND EMPLOYEE REPORTING REQUIREMENTS
The ETS requires employers to report to OSHA (i) each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality; and (ii) each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
The ETS also requires employers to be able to produce to OSHA, within four (4) days, a copy of the employer’s vaccination/face masking policy and the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. Moreover, an employee is entitled to receive, within one (1) business day, a copy of that employee’s vaccination and testing information and the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
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