New COVID-19 Vaccination Rules: What Employers Should Know about OSHA’s Emergency Temporary Standard

In September, President Biden directed the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard on COVID-19 applicable to medium-sized and larger employers. This directive was one of a number of executive actions intended to increase significantly vaccination rates in the United States. An emergency temporary standard (ETS) is unusual because it allows OSHA to sidestep the normal rulemaking process. This makes emergency temporary standards more susceptible to legal challenges than other types of OSHA rules and standards.

The ETS gives private employers with 100 or more employees a choice: such employers may implement a COVID-19 vaccination mandate, or they may, instead, create a policy under which an employer may prove proof of fully vaccinated status or choose to be tested for COVID-19 weekly. While this is the heart of the ETS, it contains many other new employer obligations, including with respect to providing paid leave to employees in connection with vaccinations, requiring unvaccinated employees to wear face coverings, providing employees information about the ETS and related topics, and making certain COVID-19 vaccination information and testing records available to employees who request the information or the DOL.

The ETS will be enforced through normal OSHA enforcement procedures, and OSHA makes clear in the ETS that enforcement will be focused on egregious violations, including employers that willfully or intentionally ignore the requirements of ETS.

The ETS states that it preempts all conflicting state and local laws. This sets the stage for near-certain court challenges to the new requirements. While some commentators have suggested that the rule is susceptible to challenge, it is not possible at this time to predict with any accuracy the likelihood that the ETS will be enjoined, in whole or in part.

Below is a summary of the ETS provisions and current open questions.

Which employers are covered by the ETS?
The ETS applies to private employers with 100 or more employees. For coverage purposes, employees are counted on a company-wide basis, not based on an individual workplace or work site.

Are any covered employer workplaces excluded from the requirements of the ETS?
Yes. The following private covered employer workplaces are excluded:

  • Workplaces of federal contractors or subcontractors covered by Executive Order 14042, which mandates vaccination and does not permit a testing option; and
  • Settings covered by OSHA’s previously issued Healthcare ETS.

Are any employees of a covered employer excluded from the requirements of the ETS?
Yes. The requirements of the ETS do not apply to:

  • Employees who do not report to a workplace where other individuals are present;
  • Employees working from home (but only while working from home); and
  • Employees who work exclusively outdoors.

When do the requirements of the ETS become binding on covered employers?
There are two important dates. The ETS is expected to be published in the Federal Register on November 5, 2021. Assuming this occurs:

  • Covered employers must comply with all of the ETS’s requirements, aside from the requirement of weekly testing for unvaccinated employees, by December 5, 2021. By this date, employers must implement a vaccination and/or testing policy, determine each employee’s vaccination status, and provide information to employees regarding COVID-19 vaccine efficacy.  More on these requirements is below.
  • Covered employers must comply with the weekly testing requirement for employees who are not fully vaccinated by January 4, 2022. This means that by this date, employees must either be fully vaccinated or begin participating in the weekly testing requirement; provided, however, that employees who have been vaccinated but not yet completed the two-week waiting period following vaccination do not have to submit to testing.  More on these requirements is below.

If publication of the ETS is delayed, the dates for compliance will be pushed out for a period equal to the delay.

When does a covered employer have to comply with the requirements of the ETS with respect to new hires?
Employer policies should address new hires and contain procedures for collecting information about vaccine status at the time of hire. The ETS requires all new hires to be vaccinated as soon as practicable or commence testing and wearing face coverings. Employers should treat all new hires similarly to any employee who has not entered the workplace in the last seven days. This means they will be required to provide proof of vaccination or to submit a negative COVID-19 test within the last seven days prior to entering the workplace and to comply with face covering requirements.

What are a covered employer’s primary obligations under the ETS?
Under the ETS, covered employers have five primary obligations:

  1. Implement a mandatory vaccination policy or implement a policy allowing employees (or certain employees) to choose between vaccination and weekly testing and masking.
  2. “Support” employees in becoming fully vaccinated by providing up to four hours of paid time off for employees to receive each primary vaccine dose and “reasonable” paid sick time recover from side effects. These “support” obligations do not appear to extend to booster vaccine doses.
  3. Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in limited circumstances. The exclusions to the face-covering requirement for employees who are not fully vaccinated are described in (10) below.
  4. Provide each employee with information about the ETS and related information; information must be provided in a language and at a literacy level the employee understands. Specifically, covered employers must provide: information about the requirements of the ETS; information about workplace policies and procedure established to comply with the ETS; the CDC document Key Things to Know about COVID-19 Vaccines; and, information about protections against discrimination and retaliation and about laws that establish criminal penalties for knowingly supplying false statements or documentation.
  5. Make certain records available for examination and copying to an employee (and to anyone with an authorized written consent of that employee) or an employee representative. These records include:
  • The individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee or a person holding the employee’s consent. Records must be made available the business day after a request.
  • The aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace to an employee or an employee representative. Records must be made available the business day after a request is made.
  • To the DOL, the employer’s written policy under the ETS and the aggregate workplace numbers and records described immediately above. The policy must be provided within 4 hours of a request; the aggregate numbers and other records must be provided the business day after a request is made.

How does a covered employer substantiate vaccination status under the ETS?
Each vaccinated employee must provide “acceptable proof” of status, which is defined as: an immunization record from a vaccine provider (acceptable providers are identified in the ETS), a copy of the CDC COVID-19 Vaccination Record Card, or a copy of medical records reflecting vaccination.

Only in instances where an employee is “unable to produce acceptable proof” may an employer substantiate vaccination status through a signed and dated statement from the employee. The requirements for an attestation are set forth in § 1910.501(e)(2)(vi).

The above requirements do not apply to employees who the employer has ascertained are fully vaccinated prior to the December 5, 2021 effective date through another form of attestation or proof and maintained records of the same.

If a covered employer chooses to implement a vaccine-or-test policy, which types of COVID-19 tests are acceptable?
The test must be a viral test, and it may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Only tests that determine current infection are compliant. In addition, a test must be cleared by the FDA and administered in accordance with authorized instructions. The ETS does not prohibit the use of rapid tests, so long as they are approved to detect current infection, and the ETS expressly contemplates the use of “proctored over-the-counter tests.”

If a covered employer chooses to implement a vaccine-or-test policy, does the employer have to pay for the cost of tests?
No, at least not under the ETS. It expressly provides that an employer is not required “to pay for any costs associated with testing,” but adds the disclaimer that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.” In other words, OSHA is not requiring employers to pay for the cost of tests, but an employer may be required to pay such costs under other laws. The ETS also states that an employer may choose to pay for the cost of testing.

Does the ETS impose special rules on masking?
Yes. For employees who are not fully vaccinated, employers must ensure that they wear a “face covering” when indoors and when occupying a vehicle with another person for work purposes. The only exceptions are as follows: (i) when an employee is alone in a room with floor to ceiling walls and a closed door, (ii) while the employee is eating or drinking at work or for identification purposes related to safety and security, (iii) when wearing a respirator or facemask, and (iv) where wearing a face covering is infeasible or creates a greater hazard. The ETS does not require employers to pay for any costs associated with face coverings.

Do employers have to provide medical or religious exemptions from vaccination, or alternatively, testing and masking under the ADA or Title VII?
Yes. Employers must provide reasonable accommodations, absent undue burden, to employees who cannot be vaccinated or undergo testing or wear a face covering because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination, testing or masking requirements of the ETS. The ETS states that the parameters of any accommodation provided by an employer is beyond the scope of the ETS and refers employers to the standards published by the EEOC in its own guidance.

How does the ETS interact with state laws that prohibit vaccine mandates?
The ETS states that it is intended to preempt inconsistent state and local laws, including state and local requirements—such as Texas Governor Greg Abbott’s Executive Order 40—banning or limiting the authority of employers to require vaccination, face coverings, or testing. Notably, the ETS says that these laws are preempted “regardless of the number of employees,” suggesting that OSHA believes these laws do not apply even in workplaces with fewer than 100 employees.  Even in States with OSHA-approved State plans (which must be amended to comply with the ETS), such bans are preempted by the ETS.

Are there any special record-keeping requirements for employers covered by the ETS, and are employees entitled to request vaccination data?
Yes. Covered employers must maintain: (i) a record of each employee’s vaccination status and proof of the same for each fully or partially vaccinated employee, (ii) a copy of all COVID-19 test results provided pursuant to the ETS, and (iii) a roster listing every employee which indicates if they are fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.  The records and roster must also be available to DOL/OSHA on request.  The vaccination and testing records and the roster must be maintained as confidential, OSHA medical records while the ETS is in effect.  The ETS specifically states that they are not considered OSHA exposure records, therefore, the 30-year exposure retention requirement does not apply.

Can states that have state OSHA plans opt out of the ETS?

No. States with State OSHA plans are permitted to propose alternative standards that OSHA deems at least as effective as its standard, but they are not permitted to refuse or opt out of compliance with the ETS.

What are the penalties for non-compliance?
The ETS does not specifically address enforcement or penalties. However, the preamble indicates that OSHA will rely on the ETS to focus on willful and egregious violations and employers who intentionally disregard the ETS or demonstrate plain indifference to employee safety. In a press conference this morning, a White House official explained that OSHA will be enforcing the ETS and will target workplaces where “workers need assistance to have a safe and healthful workplace.” We anticipate OSHA will have some planned inspections to investigate compliance and will issue penalties consistent with other penalties OSHA has in place for other standards. The White House official indicated that multiple violations could result in multiple penalties. Currently, a serious violation is subject to a penalty of $13,653 per violation, and a willful or repeat violation is subject to a penalty of $136,532. It is currently unclear the extent to which OSHA might attempt to assess such penalties on a per-employee basis, which if done could dramatically increase the potential liability for failure to comply.

Open Questions

Are booster shots required?
Not at this point, although the ETS could be amended at a later date to require them.

What are the circumstances in which an employer may be required to pay for COVID testing?
Although the ETS itself does not require that employers pay for COVID tests, it notes that payment may be required by other laws or agreements. Such other laws may include the Americans with Disabilities Act, Title VII, and state statutes requiring reimbursement of business expenses. Employers will have to look to the laws themselves for answers.

Will the ETS survive legal challenge?
The ETS is likely to be challenged in court on the ground that it exceeds OSHA’s power and does not comply with applicable rulemaking procedures. Several commentators have opined that there is a reasonable chance that the ETS, or at least portions of it, will be enjoined by the courts. Unless and until that happens, however, OSHA is free to investigate and remedy violations, leaving employers with the obligation to comply or attempt to litigate the legality of the ETS on their own, if and when they are cited for violation.

 

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