Preparing for OSHA’s COVID-19 Vaccine or Testing ETS for Large Employers

By Rose Kenyon, Steve Parascandola and Susan Milner Parrott

On November 5, 2021, the federal Department of Labor’s Occupational Safety and Health Administration (OSHA) published its "COVID-19 Vaccination and Testing, Emergency Temporary Standard" (ETS) for employers with 100 or more employees. The ETS includes over 150 pages of commentary by OSHA explaining its reasoning for the ETS. The ETS was expected following President Biden’s announcement on September 9, 2021 that employers of 100 or more employees must require that each employee be fully vaccinated against COVID-19 or submit negative testing results at least weekly. OSHA estimates that its new rule will cover 84 million employees.

Requirements and Components of the ETS

The OSHA ETS sets the minimum requirements for employee vaccination and testing, and employers may implement stricter standards. Key components of the ETS are:

• Covered employers. A covered employer is one who has 100 or more employees "firm-or company-wide" across the U.S. Employers are required to include part-time employees when determining whether the 100-employee threshold is met, but do not need to include independent contractors. An employer of 100 or more is covered even if the employees are located in multiple sites or jurisdictions within the U.S. Employees who work primarily from home or work outside must be counted when determining whether the 100-employee threshold limit is met, but the ETS’s vaccination requirements and other requirements would not apply to employees who work exclusively from home or outside, as discussed below.
• Multiple entities. In the narrative preceding the ETS itself, OSHA addressed how the 100-employee threshold would apply to several typical workplace settings or corporate structures:
  • Multiple related entities: Under the ETS, OSHA stated that multiple "related entities" (e.g., affiliates) may be regarded as a single employer for purposes of calculating the 100-employee threshold if they "handle safety measures as one company."
  • Franchisor/franchisee. OSHA has stated that the separate organizations would not be combined in the case of a traditional franchisor/franchisee relationship where individual franchises are independently owned and independently operated as true separate entities.
  • Staffing agencies. For staffing agencies, only the staffing agency would count its employees for purposes of the 100-employee threshold (even those located at a host’s site), and the host employer would not count the staffing agency’s employees.
  • Multi-employer worksite: On a typical multi-employer worksite, like a construction site, each company represented would only count its own employees.
  • Fluctuating workforce. If an employer has 100 or more employees as of the effective date of the ETS, it will continue to be subject to the ETS while the ETS is in place even if the employer’s workforce later falls below the threshold. If an employer who does not meet the 100-employee threshold on the effective date later employs 100 or more employees, that employer will become subject to the ETS and remain subject to it while the ETS is in effect, even if the employer later employs fewer than 100 employees. 
  • Federal government contractors covered by E.O. 14042. Employers whose workplaces are covered by E.O. 14042 are not required to comply with the ETS as well.
  • Employers covered by OSHA’s ETS for Healthcare. Employers covered by OSHA’s ETS for Healthcare issued on June 17, 2021 do not have to comply with this new ETS for vaccination and testing while the healthcare ETS is in effect.
• Vaccination policy. A covered employer must have a written policy requiring all employees to be fully vaccinated by January 4, 2022, except for employees: (i) for whom a vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious belief that conflict with a vaccine. An employer is exempted from this requirement, however, if the employer adopts and implements a written policy that would allow unvaccinated employees to elect to provide proof of weekly testing results and wear face masks in the workplace.
• Weekly testing alternative. An employer may comply with the ETS by allowing employees to elect not to be vaccinated but to submit negative test results at least weekly and wear a face mask in the workplace. An employer is not required to allow employees to opt-out of a vaccination requirement by electing testing, and an employer may impose a mandatory vaccination requirement on its employees. If an employer allows the testing alternative, the standard does not require employers to pay for the testing or the masks, which is a departure from normal rules that usually require an employer to pay for obligatory safety-related equipment. An employer might have an obligation to pay for testing or masks under a collective bargaining agreement or state or local law, or an employer may choose voluntarily to pay for testing and masks. If an employee does not provide the required negative test, tests positive or is diagnosed with COVID-19, the employee must be removed from the workplace.
• Paid time off. Beginning on December 5, 2021, covered employers must provide up to four hours of paid time off for an employee to get vaccinated and must give paid sick leave for an employee to recover from any side effects of getting the vaccine that prevent them from working. The paid sick leave may be capped and OSHA’s presumption is that paid sick leave of up to two days after each vaccination dose will be in compliance with the ETS.
• Face masks. Effective December 5, 2021, all unvaccinated employees must wear masks in the workplace or while driving in a vehicle with another person, unless:  (i) they are working alone in a closed space; (ii) for a limited time while the employee is eating or drinking; (iii) there are identification or safety reasons that would prevent wearing a mask; (iv) the employer can show that wearing a mask is infeasible or creates a hazard (e.g., if important to see an employee’s mouth, when the work requires the use of an employee’s mouth related to job duties or where the use of a mask presents a risk of serious injury); or (v) the employee is exclusively working remotely away from the workplace or working exclusively outside. This requirement will continue to apply after the vaccine deadline of January 4, 2022 to all employees who are not fully vaccinated, even if they have been granted an accommodation. Employers may not prevent an employee from voluntarily wearing a mask unless the employer is able to demonstrate that doing so would create a hazard of serious injury.
• Accommodations or medical contraindications. Employers are allowed to consider medical contraindications or medically necessary delays for the vaccine. In addition, employers are allowed to, and under federal civil rights laws are required to, provide for accommodations based on disability status, under the Americans with Disabilities Act, as amended, or for sincerely held religious beliefs, under Title VII of the Civil Rights Act of 1964, as amended. OSHA does not shed any new light on the accommodation process and refers to the COVID-19 guidance provided by the Equal Employment Opportunity Commission issued earlier this year. Any employee who remains unvaccinated as a result of an accommodation, however, must comply with the weekly testing requirements and face mask requirements unless an accommodation is provided for those requirements as well.
• Workplace policies to limit the spread of COVID. An employer must have a policy that requires any employee, regardless of vaccination status, to "promptly notify" the employer of a positive COVID-19 test or diagnosis by a healthcare provider. The employee must also be removed from the workplace immediately and must stay away until the employee: (i) receives a negative test on a nucleic acid amplification test, if the employee elects this test; (ii) meets the CDC return to work criteria in its "Isolation Guidance;" or (iii) receives a recommendation to return to work from a licensed healthcare provider. OSHA is not requiring an employer to provide paid time off for these purposes, but state or local laws or applicable employer policies may apply to these absences and may require pay.
• Proof of vaccination. Employers must require each vaccinated employee to provide acceptable proof of vaccination status. The ETS delineates what will constitute acceptable proof. If an employee is unable to provide one of the listed means of proof, the employee may submit a signed and dated attestation of vaccination. Employers will be required to retain copies of the "proof" of vaccination status each employee provides in a separate medical file.
• Employer reporting and record-keeping obligations. Employers will have certain reporting obligations and must report work-related COVID hospitalizations and fatalities to OSHA within 24 hours of hospitalization and within eight hours of a fatality. Employers must retain records of the proof of vaccination status provided by employees and testing results during the time the ETS is in effect, but these records are not covered under OSHA’s longer term record keeping rules.
• Employee and OSHA rights to inspection of records. Employer records of employee vaccination status and test results must be made available for copying by employees or OSHA on short notice. Employees are able to see their own vaccination or testing records by the end of the next business day after requested. Any employee or employee representative may review records about the aggregate number of fully vaccinated employees at a workplace along with the total number of employees by the end of the second day after a request. OSHA must be given access: (i) within four business hours of a request, to the employer’s written policy that complies with the vaccination mandate of the ETS, and to information relating to the aggregate number of employees vaccinated and the total number of employees at the worksite; and (ii) by the end of the next business day after a request, to all other records required to be maintained.
• Employer obligation to provide information to employees. Employers must provide certain information to employees, including: (i) the requirements of the ETS as well as the employer policies and procedures to implement it; (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 on the OSHA website; and (iii) protections against retaliation provided to employees that prevent an employer from retaliating against an employee for reporting a work-related injury or illness, for exercising rights under the ETS and for filing complaints under the OSH Act or exercising other protected rights.
• Sanctions. If an employer is inspected by OSHA and found to be out of compliance, the employer could be subject to citation and potentially fined in amounts of up $13,653 for each serious violation. Employers who willfully or repeatedly violate the ETS may be subject to fines of up to $136,532 per violation.
• Duration of ETS. The ETS, as an emergency standard, will be in effect for six months and will then need to be replaced by a permanent standard. The ETS, however, is also serving as a notice of rulemaking inviting comment, so OSHA will not have to provide additional notice before issuing a more permanent standard.
• Preempt state law. The ETS is intended to preempt state or local laws that are inconsistent with the ETS or have less stringent standards. Employers, however, would be required to comply with stricter state or local laws.

Voluntary employer vaccination mandates

Nothing in the ETS would prevent an employer from imposing stricter standards than those imposed by the ETS.

State OSHA plans

In 21 states, including North Carolina, and in Puerto Rico, OSHA has delegated authority to operate the federal OSHA program to a state agency that covers employees of private employers as well as employees of state and local governments. As a result, those state agencies have 30 days to either adopt the new ETS "verbatim" or to adopt their own, modified version. This means that the new ETS may not go into effect in these states until as late as December 5, 2021. Individualized state versions of the ETS must be "at least as restrictive" as the new federal ETS. Companies covered by the ETS with employees in these states must be sure to pay close attention to whether the applicable state agency adopts the ETS verbatim or adopts a modified version. States that fail to adopt either the ETS or a modified version that is at least as restrictive as the ETS run the risk of losing federal approval to administer the OSHA plan in the state, with the federal OSHA stepping in to enforce the ETS.

Legal Challenges

The ETS has already been challenged by a number of state attorneys general and businesses who allege that issuing the ETS exceeded OSHA’s authority and that the federal government’s attempt to mandate vaccines infringes on state’s rights protected under the 10^th Amendment to the Constitution. The Fifth Circuit Court of Appeals on November 6, 2021 temporarily halted implementation of the ETS pending briefing and argument by the Biden administration and the parties challenging the ETS.

What should an employer do now?

In light of the deadlines in the OSHA ETS, employers are well advised to begin preparations so that they may implement a compliant program by those deadlines, even though litigation is pending. A compliant program will require written policies and practical procedures to implement all phases of the program, including collecting proof of vaccination status, receiving, reviewing and deciding on accommodation requests, and monitoring compliance with weekly testing requirements and mask wearing for those not fully vaccinated.

Please feel free to contact any of the authors of this client alert if you need assistance in this effort.