Last week, on November 4th, OSHA finally issued the emergency temporary standard (“ETS”) (promised by President Biden in September) on COVID-19 vaccines for employers with 100 or more employees. The ETS requires all covered employers to either ensure their employees are fully vaccinated against COVID-19 or tested weekly for COVID-19 and wearing a mask. It is believed the ETS will affect over 80 million private sector workers.[1]

Employers now have to make a choice. An employer must either: (1) Require all employees to be vaccinated unless they have an approved medical or religious exemption (exempt employees must participate in at least once-weekly testing and wear face coverings); or (2) Offer employees the choice of showing proof that they are fully vaccinated or participate in at least once-weekly testing plus wearing a mask.

The ETS can be found here.

The Administration also issued a fact sheet summarizing the ETS and updating the recent federal contractor directive to align enforcement deadlines to the OSHA ETS.

Finally, the administration issued a three-page summary of the ETS and helpful FAQs addressing many of the questions that we have all had since the original announcement last September.

On Saturday, November 6th, the Fifth Circuit (which covers Texas, Louisiana and Mississippi) issued a stay of the ETS, with more rulings expected later this week.  We will keep you updated on the various legal challenges that the ETS faces, as many have already been filed in multiple jurisdictions.

Assuming the ETS goes into effect, what should employers prepare for?

Who Is Covered?

The ETS applies to employers with 100 or more employees (firm or corporate-wide, i.e. aggregating all locations) that are subject to OSHA’s authority and jurisdiction. Therefore, a company with multiple locations must count all their employees. Part-time employees count as one employee. Minor employees count. Temporary and seasonal workers count if they are working during the time when the ETS is in effect.

For employers with fluctuating workforces: once you meet the 100-employee threshold for coverage, the employer must come into compliance. The employer must remain in compliance for the remainder of the time period the ETS is in effect, even if the employer drops below the 100-employee threshold.

Which Employees Must Comply?

Employees who work fully remotely or exclusively outdoors do not have to comply with the vaccine mandate or testing opt out option. However, these employees are included when determining whether the Company has 100 or more employees.

Medical and Religious Exemptions

Employees are still entitled to seek a medical or sincerely held religious belief exemption. Employers must reasonably accommodate such requests, unless the accommodation poses an undue burden.  Employers should remember that the standard for what is an undue burden under the Americans with Disabilities Act (applicable to those seeking a medical exemption) is higher than under Title VII of the Civil Rights Act (for those seeking a religious accommodation). It is for this reason that many employers in certain situations, especially those who work with high-risk populations, are not granting all religious accommodation requests.  Please consult with counsel before making such a determination.

Time Off for Vaccines

Employees will be eligible for reasonable time, including up to four hours of paid time off, to receive each vaccination dose.

Employers must also provide reasonable time and paid sick leave to recover from side effects experienced following each dose. Employers can require employees to use accrued sick leave to cover reasonable time needed to recover from vaccination side effects; however, the employer cannot require borrowing against future accruals or use of vacation time (if the employer accrues sick and vacation separately).

What Constitutes “Fully Vaccinated”?

We typically say to be considered fully vaccinated, employees must be at least two weeks past the last dose of the vaccine, having received either two doses of the Pfizer-BioNTech or Moderna vaccines or one dose of the Johnson & Johnson/Janssen vaccine. At this point, boosters are not required. However, employees who have been vaccinated overseas in accordance with guidelines set out by the World Health Organization will also be considered fully vaccinated.  Natural immunity derived from having had COVID-19 is insufficient to bestow vaccinated status.

What Is Acceptable Proof of Vaccination?

Many of our clients that have already been monitoring employee vaccine status have been either using attestation forms or simply viewing vaccine cards without keeping a copy. This will not be acceptable under the ETS.

Under the new rule, employees must provide acceptable proof of vaccination status. This can be done by providing a copy of:

  • the record of immunization from a health care provider or pharmacy;
  • a copy of the U.S. COVID-19 Vaccination Record Card;
  • a copy of medical records documenting the vaccination;
  • a copy of immunization records from a public health, state, or tribal immunization information system; or
  • a copy of any other official documentation that contains the type of vaccine administered, dates of administration, and the name of the health care professional or clinic site administering the vaccine.

The document should (at a minimum) include the employee’s name, type of vaccine administered, date of administration, and the name of the health care professional or clinic site administering the vaccine.

There is a process for employees who have lost their cards.

Testing Opt-Out

Employers can elect to mandate vaccines. However, companies may also elect not to mandate vaccines, but to instead allow employees who are not fully vaccinated to be tested weekly.  Specifically, under the ETS, employers must ensure that all unvaccinated employees be tested for COVID-19 at least weekly or within seven days of returning to work (if away from the workplace for a week or longer). Such employees must also wear a mask at all times when working indoors or in a vehicle with another person for work purposes.

Employers are not required to pay for any costs associated with testing; however, testing shortages or to maintain a competitive edge, employers may elect to provide the tests or assume the costs associated with testing.

Employers who are accommodating employees who are medically unable to receive the vaccine or who have a sincerely held religious belief that prevents them from being vaccinated will also need to comply with weekly testing and mask wearing as a reasonable accommodation.

Testing Records

Employers must maintain a record of each test result required to be provided by each unvaccinated employee. These records must be maintained as employee medical records and treated as such while the ETS is in effect.

What Types of Tests Are Acceptable?

Employees may use any test that is authorized by the FDA. However, employees may not use a test that is both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Accordingly, employees can use both laboratory-run tests and proctored over-the-counter and point-of-care tests where specimen collection and processing is either done or observed by an employer.

The specifics on types of tests and how to administer them can be found here.

What if the Employer Cannot Find Sufficient Tests?

In their FAQs on the ETS, OSHA states that it has determined that “there are sufficient COVID-19 tests available and adequate laboratory capacity to meet the anticipated increased testing demand related to compliance with the ETS testing requirements.”  If that turns out to be inaccurate, before issuing fines, OSHA will look at good faith efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program.

What If Someone Tests Positive?

An employee that tests positive for COVID-19 must be removed from the workplace, regardless of vaccine status. The employee must then follow CDC or their physician’s guidance about returning to the workplace. The ETS does not require paid time off for those who test positive. However, other laws may require paid time off.

What About Facilities In States With A State OSHA Program?

There are 22 states (including California, Maryland, Michigan, North Carolina, Vermont, Virginia, and Washington) that have their own OSHA plans. In the ETS, OSHA states that these state programs must pass rules that are as effective as the OSHA ETS in protecting workers from COVID-19. These states have 30 days to either adopt the federal ETS or implement an equally effective regulation. States must inform OSHA of their plan by November 20th.

OSHA has further stated that it believes its rule preempts any inconsistent state or local law, even those that purport to limit an employer’s authority to institute COVID-19 protections such as vaccine, testing or mask mandates.

What Happens if an Employer Fails to Comply?

OSHA has announced that the penalties will be consistent with existing OSHA violation penalties. Specifically, violation of the ETS may result in a fine of up to $13,653 per violation.

Deadlines and Requirements:

Within 30 days, by December 4, 2021, an employer must:

  • Develop and implement a plan of how the company will address the ETS and provide proper notice to employees. Companies can elect either to mandate COVID-19 vaccines or to allow unvaccinated employees to submit weekly negative COVID-19 tests while continuing to wear masks.
  • Determine who is and who is not fully vaccinated against COVID-19. Those who are not fully vaccinated must wear a mask. Employers that allowed attestations or simply viewed cards, will now have to:
  • Record the status of each employee;
  • Obtain acceptable proof of vaccination;
  • Maintain records of each employee’s vaccination status; and
  • Maintain a roster of each employee’s vaccination status (with proper storage)
  • Provide support for employee vaccination
  • Implement rules about notification of a positive COVID-19 test result, including requiring that they be removed from work.
  • Collect vaccine cards from those already fully vaccinated.

Within 60 days, by January 5, 2022:

  • Implement a plan for how you will ensure employees who are unvaccinated have a negative COVID-19 test each week. Employees who will by complying with the vaccine requirement must be fully vaccinated by this date.

In Conclusion

Employers with 100 or more employees will need to determine whether to adopt a vaccine mandate or allow employees to test weekly/wear a mask under the ETS. In making this determination, you should consider the day-to-day impacts and long-term obligations relating to your choice. In addition, employers should be prepared for the potential of OSHA inspections related to the enforcement of the ETS.

We welcome your calls regarding drafting an ETS compliant plan, vaccination policies, vaccine exemptions, and other issues relating to this announcement. We are available for consultation and assistance with preparing compliant plans. As always, we are staying on top of this daily-changing COVID-19 in the workplace landscape and are here to help you through it.

[1] Companies with certain federal contracts are subject to a heightened vaccine mandate requirement with no provision for unvaccinated employees to instead opt to be tested regularly.