On November 4, 2021, the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (the “ETS”). The ETS implements the additional measures to encourage vaccination against COVID-19 among American workers that President Biden first announced in September 2021. The ETS requires all covered employers with one hundred (100) or more employees to implement minimum vaccination and testing requirements, vaccine verification, paid time off relating to vaccination and face covering requirements for unvaccinated employees in the workplace. As noted by OSHA, “[t]he ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.”
The ETS is effective immediately following publication in the Federal Register on November 5, 2021 (the “Effective Date”). Covered employers have (i) 30 days after the Effective Date to implement all requirements other than testing for employees who have not completed their entire primary vaccination dose(s) and (ii) 60 days after the Effective Date to implement testing for employees who have not received all doses required for vaccination. As of the date of publication of this alert, at least 27 States (and numerous businesses) have filed lawsuits challenging the legality of the ETS and, on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit granted an emergency stay of the ETS requirements pending further review.
OSHA intends the ETS to preempt any state or local laws relating to “the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19.” States with their own OSHA agencies have thirty (30) days to implement similar or more protective rules.
This document represents a summary of the available guidance and does not purport to explain all circumstances or nuances.
Complying with the Mandate to Vaccinate the Workplace
Q: What requirements does OSHA’s ETS mandate?
A: The ETS requires that covered private sector employers with one hundred (100) or more employees, firm or companywide, at any time while the ETS is in effect, to develop, implement and enforce a mandatory COVID-19 vaccination policy (subject to medical or religious exemptions as might be required under applicable law), unless such employers instead adopt a policy requiring that unvaccinated employees undergo regular, weekly COVID-19 testing and wear face coverings in the workplace. The ETS also requires covered employers to do the following:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
- Support vaccination by providing employees reasonable time, including up to four (4) hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
- Ensure that each unvaccinated employee is tested for COVID-19 at least weekly (if the employee is in the workplace at least once a week) or within seven (7) days before returning to work (if the employee is away from the workplace for one (1) week or longer).
- Require covered employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis; in each case, covered employers must immediately remove the employees from the workplace, regardless of vaccination status, and not permit them to return to the workplace until they meet required criteria.
- Ensure that, in most circumstances, employees who have not been fully vaccinated wear face coverings when indoors or when occupying vehicles with another person for work purposes. Covered employers must not prevent employees from voluntarily wearing face coverings unless it creates a hazard of serious injury or death.
- Require covered employers to provide employees, in a language and at a literacy level the employees understand, information about the requirements of the ETS and workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Require covered employers to report work-related COVID-19 fatalities to OSHA within eight (8) hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
- Require covered employers to make available to employees (i) such employee’s COVID-19 vaccine documentation and any COVID-19 test results, and (ii) the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Q: Are private sector employers with less than one hundred (100) employees affected?
A: No, employers with less than one hundred (100) employees are not subject to the ETS requirements (unless the employers had one hundred (100) or more employees at any time during the period in which the ETS is in effect—that is, if an employer that has one hundred (100) employees now then dips below one hundred (100) employees in the future, that employer remains subject to the ETS notwithstanding that it falls below one hundred (100) employees). Such employers, however, still remain subject to the Occupational Safety and Health Act’s General Duty Clause, 29 U.S.C. § 654, 5(a)1, which requires employers to “provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”
Q: What employees are covered under the ETS?
A: All employees of covered employers with one hundred (100) or more employees, firm or companywide, at any time when the ETS is in effect, are covered by the ETS (including employees who have been previously infected with COVID-19), except:
- the ETS does not cover employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors;
- federal workers, healthcare workers and employees of federal contractors and subcontractors are not covered by the ETS and are instead covered by separate executive orders not addressed in this alert; and
- although those states with state OSHA agencies also will be required to apply the standard to local and state government workers, public employees in states that do not have their own safety agency, including Texas, Florida, and Ohio, will not be covered by the federal mandate.
Q: Are covered employers required to pay for testing or face coverings?
A: No, the ETS does not require covered employers to pay for testing. Covered employers, however, may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Covered employers are also not required to pay for face coverings.
Federal Register: COVID-19 Vaccination and Testing; Emergency Temporary Standard. Occupational Safety and Health Administration, Department of Labor (November 5, 2021). https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard#h-15.
Summary, COVID-19 Vaccination and Testing ETS. Occupational Safety and Health Administration, Department of Labor (November 4, 2021). https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf
Otto Nunez-Montelongo (White & Case, Associate, Washington, DC) contributed to the development of this publication.
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