This morning the Occupational Safety and Health Administration formally issued its Emergency Temporary Standard on COVID vaccinations. Most employers with 100 or more employees will have to require their employees to get vaccinated, or wear masks and get tested weekly.
Most provisions of the ETS will take effect on December 5. However, the requirement of weekly testing of unvaccinated employees will not take effect until January. The ETS will be in effect for six months.
As always, the details get complicated. This bulletin will attempt to cover some of the highlights.
The OSH Act provides that OSHA, an agency of the U.S. Department of Labor, has the authority to issue an emergency temporary standard without going through the normal regulatory process if the agency believes that employees are exposed to a “grave danger.” OSHA made such a determination in issuing the vaccine standard, finding that continued reliance on existing standards and regulations, the OSHA General Duty clause, and guidance has not been adequate.
As part of the Federal Register notice announcing the new standard, OSHA is asking for public input on whether the scope of the ETS should be expanded to cover employers with fewer than 100 employees. The ETS also acts as a proposed standard for a normal regulatory process to develop a permanent standard.
Now to some specific issues:
What about state OSHA plans?
States with OSHA-approved state plans are required to adopt the ETS, or a standard that is at least as effective as the ETS, within 30 days. If not, OSHA has indicated that it may begin the process to withdraw its approval of the state plan and resume federal jurisdiction in the state. That’s a big deal, but it could happen.
What about states with bans on vaccine mandates or masking?
OSHA takes the position, with some decent Supreme Court support, that the OSH Act preempts state laws addressing an issue covered by an OSHA standard, and therefore that these bans would not be enforceable. That’s the reason that the state plan process was included in the Act in the first place. Congress intended that OSHA regulations be uniform, or at least as effective, in every state.
But look for lots of litigation on this issue.
Are any employers with 100 or more employees not “covered” by the ETS?
Yes. Any federal contractor who is covered by the vaccine guidance issued by the Safer Federal Workplace Task Force will be automatically deemed to be in compliance with the ETS, as will federal employers covered by President Biden’s Executive Order 14043.
Which employees are exempt?
The ETS does not apply to employees who telecommute (presumably full-time), or who work in remote locations where they have no co-workers and encounter no customers.
Outdoor workers are exempt if they work outdoors on all days, and do not routinely occupy a vehicle with other employees as part of their work duties. (Brief times spent indoors, such as going inside to the bathroom or quickly in an administrative office is okay.)
Who pays for testing?
The employer can pay, but is not required to do so. Unvaccinated employees can be required to pay for their testing, and even their face masks.
(But please note that requiring employees to pay for COVID tests, or failing to compensate them for the time spent testing, could violate various state laws and also create issues under the federal Fair Labor Standards Act and state wage-hour laws.)
How frequently must an unvaccinated employee be tested?
Every seven days.
Who pays for vaccinations?
The employer is required to pay for the vaccinations and must pay the employee for reasonable time to get vaccinated (up to four hours), as well as for time spent recuperating from any side effects of the vaccine.
Who counts toward the 100 employees?
Both part-time and full-time employees are included in the count, and the count applies to the entire business at all locations in the United States, not a specific location. Independent contractors are not included. Employees of staffing agencies are considered employees of the agency, not the “host employer.” Employees of franchisors and employees of franchisees are considered separate.
Employees who are exempt from the ETS (for example, telecommuters) are still included in computing the 100-employee threshold.
What about reasonable accommodation for medical, religious or other reasons?
OSHA defers to the EEOC guidance and also indicates that unvaccinated employees may seek accommodations for the testing alternative.
Does the employer have to maintain a roster of vaccinated employees?
Yes, and it must have acceptable evidence of an employee’s vaccinations or COVID test results. It is also required to compute the aggregate number of vaccinated employees versus the total number of employees at each worksite.
What is considered “fully vaccinated”?
Two weeks after the second dose (or single dose for one-dose vaccines). The ETS does not mention boosters.
Are employees who had COVID exempt?
No exceptions for “natural immunity.”
Are there any training or policy requirements for covered employers?
Yes. Employers who are covered must publish a written policy, either mandating vaccines or providing the vaccine/testing alternative. They are also required to provide information to employees about the safety, efficacy, and benefits of vaccination.
When does all this take effect?
The standard is effective today.
Most requirements must be met within 30 days, except for COVID-19 testing for employees who are not fully vaccinated. The testing requirement will take effect in 60 days.
This is a very significant standard, and we are certain that there will be many more questions, and hopefully answers in the coming days and weeks. The OSHA Practice Group will be constantly monitoring these developments and will provide updates as necessary. In the meantime, please contact any member of the Group if you have specific questions.
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