Employment Law Report
OSHA Issues Emergency Temporary Standard Requiring Vaccinations or COVID-19 Testing
By: Mitzi D. Wyrick
In an attempt to give vaccination numbers a shot in the arm, the federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) to protect unvaccinated employees of large employers from the risk of contracting COVID-19 in the workplace. Covered employers must develop, implement, and enforce a mandatory vaccination policy unless they elect to allow employees to undergo regular COVID-testing and wear a mask.
Which Employers are Covered? Employers with 100 or more employees as of November 5, 2021. If an employer does not have 100 employees as of November 5, 2021 but later hires enough employees to meet the 100-employee threshold during the duration of the ETS, the employer becomes covered. And if an employer with 100 or more employees as of November 5, 2021 loses employees while the ETS is in effect, the employer will continue to be covered. In states that have their own OSHA State plan, like Kentucky, state and local government employers are covered, including state and local school systems.
How are Employees Counted? Employees are counted on a company-wide basis and not at a single location. All employees, including part-time employees, employees working from home, temporary employees employed directly by the employer, vaccinated employees, and employees who work outdoors, across all of an employer’s U.S workplaces are counted regardless of where they perform their work. Employees from staffing or temporary agencies are counted by the staffing agency and not by the host employer.
Are there Exceptions? Yes, workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; healthcare settings that are subject to OSHA’s Healthcare ETS, 29 CFR 1910.502, effective June 21, 2021; and employers with fewer than 100 total employees are not covered. If OSHA’s Healthcare ETS expires, then employees with at least 100 employees will be covered under this ETS.
Do all Employees Have to be Vaccinated? No. Employers that are covered under the ETS can require vaccination or can require that unvaccinated employees be subject to weekly COVID-19 testing and masking. If employers choose to require vaccination, employees who do not comply may be disciplined, including discharge, and would not be protected from discharge under the OSH Act. Employers may choose to implement a mandatory vaccination policy for only part of its workforce, such as for employees who come into contact with the public as part of their job.
Which Employees are Not Covered? Employees who do not report to a workplace where other employees are present, employees who work from home, and employees who work exclusively outdoors are not covered. To be considered outdoor work, an employee must work outdoors on all days, must not routinely occupy vehicles with other employees as part of work duties, and must use indoor spaces only briefly. Outdoor work does not include buildings under construction where substantial portions of the structure are completed.
What are the Requirements for Unvaccinated Employees? Employees who are not vaccinated must be COVID-tested at least weekly and use face coverings unless they are fully remote or work outdoors. Employees must provide notice of a positive COVID-19 test and will be required to stay out of the workplace until all return-to-work criteria are met. Unvaccinated employees must wear a face covering when indoors or in a vehicle with another person for work purposes. Unvaccinated employees must wear a mask except where they are alone in a room with floor to ceiling walls and a closed door, briefly while eating or drinking, when wearing a respirator, or if it is infeasible for safety reasons creating a risk of serious injury or death.
What Kinds of Face Coverings are Required? A face covering consists of 2 or more layers of fabric that do not let light pass through and can be a mask or gaiter with no gaps or openings. A face shield will not comply. Vaccinated employees are not required to wear face coverings but cannot be prevented from doing so.
What Should Employers Do to Comply? Employers must develop, implement, and enforce a mandatory written policy requiring vaccination or requiring employees to elect vaccination or masking and weekly COVID-19 testing. Employers must determine the vaccination status of their workforce, obtain proof of vaccination from employees, and maintain a record of every employee’s vaccination status.
What Does An Employer’s Policy Have to Contain? Employees must have a written mandatory policy addressing the requirements for vaccination and/or testing; any applicable exclusions from the policy; information on how vaccination status will be determined and collected; paid and sick leave time available for vaccination and recovery; procedures for notification of positive COVID-19 tests and removal from the workplace; information about vaccine safety and efficacy; and disciplinary action that will occur for employees that do not comply. The policy should also include deadlines for vaccination and for submitting proof of vaccination as well as the procedures for enforcement. Employers should include a prohibition against discrimination or retaliation for reporting work-related injuries or illness, for filing an OSHA complaint, and for exercising rights under the OSH Act.
What Should Covered Employers Tell their Employees about the ETS? Employers must provide information to employees about the ETS; workplace policies and procedures to implement the ETS; vaccine efficacy and safety as described in “Key Things to Know About COVID-19 Vaccines,” available here; protections against retaliation and discrimination under OSHA; and criminal penalties for knowingly supplying false documentation.
Are Employers Required to Give Employees Paid Time Off? Employers must provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose. Employers cannot require employees to use their sick or vacation leave to receive a vaccination. Employers must provide reasonable time and paid leave to recover from the side effects of vaccination. Employees cannot be required to use their vacation time for recovery. If an employee does not have sick leave left, employers cannot require employees to accrue negative sick leave or borrow against future paid sick leave. Employers may set a reasonable cap for paid sick leave available for recovery. Although the ETS does not define what is reasonable, OSHA presumes up to 2 days of paid sick leave per vaccination dose is sufficient, which is in addition to the four hours of paid leave for receiving each vaccination dose. Employers who do not choose to require vaccination must still provide their employees paid time off for receiving vaccinations and for recovery for employees who choose to be vaccinated.
Are There any Exemptions? Employees for whom a vaccine is medically contraindicated or for whom a delay in vaccination is required are exempt. In addition, employees who are entitled to a reasonable accommodation because of a disability or sincerely-held religious belief are exempt. There are no exemptions based on natural immunity or antibodies. Employees who are not vaccinated must still comply with testing and masking requirements even if they are exempt.
What Proof of Vaccination is Required? Employees must provide a copy of their vaccination card. Documentation must include an employee’s name, the type of vaccine administered, dates of administration, and the name of the health care professional or site administering the vaccine. If an employee is unable to locate their vaccination card and has unsuccessfully attempted to obtain a copy, an employee may provide a signed and dated statement attesting to their vaccination status, that they have lost and cannot produce proof, and include language acknowledging that knowingly providing false information may subject them to criminal penalties. They should also include information about the type of vaccine they received, the dates of administration, and the site where they received it.
Employers must require employees to submit a physical copy of a vaccination card or a digital copy of the card, which may be a photograph. But employers must be able to maintain a record of the vaccination status so merely viewing the card or picture will not suffice. Both employees and employers are subject to penalties for knowingly submitting false documentation.
What Kind of Testing is Required for Unvaccinated Employees? Tests with specimens that are processed by a laboratory, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer are acceptable. Over-the-Counter (OTC) tests are acceptable if the test is not both self-administered and self-read unless observed by an employer or an authorized telehealth proctor. Note that if an employee has previously tested positive for COVID, they cannot be required to undergo testing for 90 days following a positive test and must wear face coverings during this time. And if an employee has received all doses of a vaccine (not including booster doses) by the date the testing requirement of the ETS is effective, the employee does not have to undergo weekly testing.
When Can Employees Who Test Positive Return to Work? Employees with positive COVID-19 test results must be removed from the workplace. If an employee tests positive under an antigen test (which is less reliable) and then undergoes a nucleic acid amplification test (NAAT) as a confirmatory test, they can return following a negative NAAT test. Otherwise, an employee must follow CDC guidance or a recommendation from a licensed healthcare provider to be able to return to work. Employers are not required to provide paid time off to employees who test positive, but employees should be allowed to use any leave they have. Employees who are removed from the workplace can still work remotely unless they are too sick to do so.
Who Pays for the Testing? Whether the employee or the employer pays for the weekly testing is up to the employer unless the employer is required to pay for testing under a collective bargaining agreement or other law or regulations.
What Records are Employers Required to Keep? Employers must maintain records of the vaccination status of each employee and of each COVID-19 test result while the ETS is in effect. In addition, employers must maintain a roster of employees and their vaccination status, noting whether an employee is fully vaccinated, partially vaccinated, or unvaccinated, and whether they are not vaccinated because of a medical or religious accommodation or because they have not provided acceptable proof of their vaccination status. Vaccination records and the vaccination roster must be treated as confidential medical information and maintained separately from other personnel records. Employers must be able, in response to a request by an employee or employee representative, to provide the aggregate number of fully vaccinated employees at a workplace along with the number of employees at the workplace.
When does the ETS take effect? The ETS takes effect on November 5, 2021. Employers must comply by December 5, 2021. COVID-19 testing for unvaccinated employees is effective January 4, 2022. State plans must adopt and enforce the ETS or health and safety standards that are at least as effective as OSHA’s requirements by December 4, 2021. For state plans that fail to adopt the federal ETS or a standard that is at least as effective, OSHA will begin enforcement actions to possibly revoke or decertify the State OSHA plan.
What about Contrary State or Local Laws? The ETS preempts state and local laws that ban or limit an employer’s authority to require vaccination, masking, or testing.
How Long Does the ETS Last? The ETS is in effect for six months, but may be updated if grave danger no longer exists or if OSHA deems other measures necessary.
Where Can I Get More Information? A summary of the ETS is available here. A list of Frequently Asked Questions is available here. A Fact Sheet about the COVID-19 Vaccination and Testing ETS is available here. And the full 490-page ETS and proposed rule is available here. Sample policies from OSHA are available on the DOL’s website here.