UPDATE November 24, 2021 – The Emergency Temporary Standard (ETS) is currently stayed. The petitions filed challenging the ETS were consolidated and assigned to the United States Court of Appeals for the Sixth Circuit through the Judicial Panel on Multidistrict Litigation’s lottery process. Based on the briefing schedule issued by the Sixth Circuit in its November 23, 2021 Order in response to the federal government’s emergency motion to lift the stay, it will likely take at least a few weeks for the Sixth Circuit to rule on the motion.
The Occupational Safety and Health Administration (OSHA) released its highly anticipated draft COVID-19 vaccination emergency temporary standard (Vaccine ETS) yesterday. As anticipated, the rule requires most employers with 100 or more employees to adopt a policy mandating that employees either get vaccinated against COVID-19 or submit to weekly COVID-19 testing. OSHA also amended its mini respiratory protection program standard, severability standard, and materials incorporated by reference, which were issued as part of OSHA’s prior healthcare COVID-19 ETS (the “Healthcare ETS”).
The Vaccine ETS will become final upon publication in the Federal Register. Once that occurs, employers will have 30 days to comply with the Vaccine ETS, except for the COVID-19 testing requirements of unvaccinated employees, for which employers will have 60 days to comply. The Vaccine ETS was published today, which would make the compliance deadlines December 6, 2021, and January 4, 2022.
In addition, the Biden Administration announced that employees who are required to be vaccinated under the separate federal contractor mandates will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.
Which employers are subject to the COVID-19 ETS?
Private employers with 100 or more employees are subject to the new rule. However, the rule does not apply to workplaces covered under the federal contractor vaccine mandate or to workplaces covered under Section 29 CFR 1910.502, the Healthcare ETS.
OSHA has defined Workplace as “a physical location (e.g., fixed, mobile) where the employer’s work or operations are performed. It does not include an employee’s residence.”
The Vaccine ETS does not require that all employees of a covered employer be vaccinated or submit weekly proof of testing. The Vaccine ETS does not apply to employees: (a) who do not report to a workplace where other individuals are present, (b) while working from home; or (c) who work exclusively outdoors.
Private employers in states with state occupational safety and health plans will be subject to the applicable state occupational safety and health standard. State plans have 30 days to adopt the Vaccine ETS or implement their own standard which must be at least as effective as the Vaccine ETS.
What does the Vaccine ETS require of covered employers?
The following is a brief summary of a covered employer’s requirements under the Vaccine ETS:
- Written Mandatory Vaccination Policy. Employers must establish, implement, and enforce a policy that either mandates that all employees be vaccinated or requires either (i) vaccination or (ii) weekly submission of a negative COVID-19 test and the wearing of a face covering while at work.
- Determination of Employees’ Vaccination Status. Employers must determine the vaccination status of each employee. Employers must require vaccinated employees to provide proof of vaccination status, including whether the employee is partially or fully vaccinated. The Vaccine ETS specifies the acceptable proof of vaccination status, which can be: (a) an immunization record from a healthcare provider or pharmacy; (b) a copy of a COVID-19 Vaccination Record Card; (c) a copy of medical records documenting the vaccination; (d) a copy of immunization records from a public health, state, or tribal immunization information system; or (e) a copy of any other official documentation that includes the type of vaccine administered, dates of administration, and name of healthcare professionals/clinic site that administered the vaccine.
If an employee is unable to submit acceptable proof, the Vaccine ETS allows employers to accept from the employee an attestation to the employee’s vaccination status, that they have lost or are unable to produce the required proof, and that includes a specific statement certifying that the information provided is true and accurate and the employee understands that knowingly providing false information may subject them to criminal penalties.
- Paid Time Off to Get Vaccinated. Employers must provide employees with reasonable time to get vaccinated and provide up to four hours of paid time (including travel time) for each primary dose. If an employee experiences side effects after receiving a primary vaccination dose, the employer must provide reasonable time and paid sick leave for each employee to recover from the side effects.
- Weekly COVID-19 Testing for Unvaccinated Employees. For employees who are unvaccinated (or do not provide acceptable proof of full vaccination status) and report at least once every seven days to a workplace where there are other individuals, employers must require the employee to be tested at least once every seven days for COVID-19 and provide documentation of the most recent COVID-19 test results. The Vaccine ETS does NOT require employers to pay for any costs associated with testing, but notes that other laws, regulations, or collective bargaining agreements may require it. Employers must keep unvaccinated employees removed from the workplace if they do not provide the required COVID-19 test documentation. Employers must NOT require employees who tested positive for COVID-19 (or received a COVID-19 diagnosis from a licensed healthcare provider) to undergo weekly COVID-19 testing within 90 days of their positive test date.
- For employers that adopt a mandatory vaccination policy without the option for weekly testing, such a policy can provide temporary or permanent exemptions for employees for whom a vaccine is medically contraindicated, for whom there is a medical necessity to delay vaccination, or who request and receive a reasonable accommodation for a disability or a sincerely held religious belief.
- For employers that adopt a policy that allows for either vaccination or weekly testing with masking, requests for disability or religious accommodations would require the individual to be unable to comply with both the vaccine requirement and the alternative testing and masking requirement. Employers adopting this second option will likely see far fewer accommodation requests.
- COVID-19 Testing for Unvaccinated Employees Returning to the Workplace. Unvaccinated employees who do not report to a workplace during a period of seven days or more must be tested for COVID-19 within seven days prior to returning to the workplace and provide documentation of the test results to the employer.
- Employee Reporting of COVID-19 Illness and Medical Removal. An employer must require employees (regardless of vaccination status) to promptly notify the employer when they test positive for COVID-19 or receive a COVID-19 diagnosis from a licensed healthcare provider. An employer must immediately remove the employee from the workplace and the employee must not be allowed to return until: (a) the employee receives a negative COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a confirmatory NAAT test; (b) the employee meets the return-to-work criteria in the CDC’s Isolation Guidance; or (c) the employee receives a recommendation of return to work from a licensed healthcare provider.
Employers’ medical removal obligations under the Vaccine ETS do not require employers to provide paid time off. An employer may be required to provide paid sick leave under state or local laws or the terms of a collective bargaining agreement or employer policy.
- Face Coverings, Facemasks, and Respirators. Whichever policy option an employer chooses, it must require any employee who is not fully vaccinated to wear a face covering when indoors and occupying a vehicle with another person for work purposes. This provision does NOT require an employer to pay for any costs associated with face coverings, but other applicable laws may require an employer to cover the costs. This requirement does not apply: (a) when the employee is alone in a room with floor-to-ceiling walls and a closed door; (b) for limited periods of time while the employee is eating or drinking, or for identification purposes; (c) when the employee is wearing a respirator or facemask; and (d) when the use of a face covering is infeasible or creates a greater hazard.
Employers must ensure the face mask fully covers the employee’s nose and mouth and is replaced when it gets wet, soiled, or damaged. If an employee voluntarily wants to wear a face covering or mask, an employer cannot prevent the employee from doing so unless the employer can show it would create a hazard of serious injury or death. An employer is also prohibited from preventing customers or visitors from wearing face coverings.
Employers must permit employees to wear a respirator instead of a face covering (regardless of whether a face covering is required), and employers may provide respirators to employees, even when not required. These circumstances trigger employers’ obligations under the mini respiratory protection program standard (§ 1910.504). In cases where an employee’s job duties require that a respirator be worn, OSHA’s Respiratory Protection Program Standard applies.
- Giving Information to Employees. Employers must provide employees with the CDC’s “Key Things to Know About COVID-19 Vaccines,” and give employees information about the requirements of the Vaccine ETS, employer policies and procedures concerning the Vaccine ETS, an employer’s anti-retaliation obligations, and the prohibitions of 18 U.S.C. 1001 and Section 17(g) of the OSH Act, which carry criminal penalties for knowingly providing false statements or documentation. The information provided must be written at a literacy level and in a language that the employee understands.
- Reporting COVID-19 Hospitalizations and Fatalities. An employer must report a work-related COVID-19 fatality within eight hours of the employer learning of the fatality and a work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about it.
- Recordkeeping. Employers must maintain employee proof of COVID-19 vaccination documentation and the documentation of unvaccinated employees’ on-going COVID-19 test results as part of the employee medical record in accordance with OSHA’s employee medical record standard (29 C.F.R. 1910.1020), and retain them while the Vaccine ETS remains in effect.
- Availability of Records. If requested, employers must make COVID-19 vaccination documentation and COVID-19 test results for a particular employee available to that employee or anyone with written authorized consent of the employee by the end of the next business day. If requested by an employee or employee representative, employers must provide the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at the workplace by the end of the next business day.
An employer must provide its written COVID-19 vaccination policy and the aggregate number of employees vaccinated at the workplace as well as the total number of employees at the workplace within four business hours of a request from OSHA.
What Can an Employer Do to Prepare?
The timeline for compliance to the rule is short. Employers subject to this regulation should review their COVID-19 vaccination and testing policies and revise them if necessary to comply with the Vaccine ETS, disseminate the required information to employees, and prepare for the rule’s record-keeping requirements. Employers subject to this regulation that have not yet implemented a policy should prepare and implement one.
While it is anticipated that there will be lawsuits challenging the Vaccine ETS on several grounds, and a court could potentially issue an injunction, employers should proceed on the assumption that the compliance deadline for employers is December 5, 2021, except for the COVID-19 testing requirements for unvaccinated employees, for which employers have until January 4, 2022, to comply.