On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced an “Emergency Temporary Standard” (ETS) on workplace safety and coronavirus. The ETS is in response to President Biden’s directive in September for OSHA to develop standards regarding vaccination, or testing in lieu of vaccination, for large businesses. The ETS is also the result of OSHA’s conclusion that existing standards and regulations, the General Duty Clause of the Occupational Safety and Health Act, and workplace guidance are insufficient to protect unvaccinated employees from the dangers associated with COVID-19 infections. This article highlights standards established by the ETS. Additional information pertaining to the ETS may be found on OSHA's website.

1. What businesses does the ETS cover?

• Currently, the ETS covers businesses of 100 or more employees. However, OSHA is assessing the capacity of smaller employers to comply and implement the ETS standards.
• When counting employees, an employer should include all employees at all of its locations.
• Part-time employees are included in the count;
• independent contractors are not included.
• Employees placed with an employer by a staffing agency do not count towards the 100 employees threshold. These employees count towards the staffing agency’s numbers, however.

2. Does the ETS apply in states that prohibit vaccine mandates?

• Citing Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88 (1992), OSHA indicates the ETS preempts state and local laws when it comes to wearing face coverings, testing, and vaccinations in the workplace.
• However, the ETS does not preempt state and local laws that have imposed additional safety measures, i.e., proof of vaccination status, more stringent mask requirements, etc.

3. Does the ETS apply to unionized workplaces?

• ETS applies even where the workforce is unionized. However, the ETS does not supplant collective bargaining agreements or other collectively negotiated agreements in effect that may have negotiated terms that exceed the ETS requirements.
• In other words, the ETS establishes a floor for protections. It does not preclude bargaining for additional protective measures.

4. Are all employees of an employer with 100 or more employees required to be vaccinated or undergo weekly testing?

• The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Guidelines (discussed below), nor does it apply to employees who work in settings in which they provide healthcare services or healthcare support services.
• The ETS also does not apply to employees who do not work in workplaces with other people or where others are present, employees while they work from home, or employees who work exclusively outdoors.

5. What does the ETS require?

• Employers must adopt either:

i.a mandatory COVID-19 vaccination policy, or
ii.a policy that requires vaccinated employees to provide proof of vaccination, and unvaccinated employees to undergo at least weekly COVID-19 testing and wear a face mask in the workplace.

• Employers must 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.
• COVID-19 testing for employees who are not fully vaccinated must happen at least weekly or within seven days before returning to work if the employee is away from the workplace for a week or more.
• The preamble to the regulations provides that the tests must be:
  1. cleared, approved, or authorized, including in an Emergency Use Authorization by the U.S. Food and Drug Administration to detect current infection with the SARS-CoV-2 virus;
  2. administered in accordance with the authorized instructions; and
  3. not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
• The preamble gave examples of tests that meet those requirements, and includes “tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection is either done or observed by an employer.”
• Employees, vaccinate or unvaccinated, must provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria to return to work.
• Employers should ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes. Employers also cannot prevent any employee from voluntarily wearing a face covering unless it creates a serious workplace hazard.

•  Employers must ensure provisions are addressed in the workplace by the following dates:

i.  30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s).
ii.  60 days after publication: Testing for employees who have not received all doses required for a primary vaccination.

• OSHA indicates that the ETS will allow for the agency to “issue more meaningful penalties for willful and egregious violations.” There is no established amount per penalty. This will likely depend on a case by case analysis, but OSHA has reserved the ability to issue separate penalties for each instance of noncompliance.

6. Are there exceptions to the vaccination or testing policy requirement?

• If an employer applies a mandatory vaccination policy, the ETS provides that the policy should include an exceptions for employees (i) for whom a vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
• In the case of any vaccination, testing, or face covering requirement, the ETS provides that the employee may be entitled to reasonable accommodation on account of a disability or sincerely held religious belief, practice, or observance.

7. What notices, reports and records are required?

• Employers must provide employees with the following notices in a language at and a literacy level that they understand:

i.  Information about the requirements of the ETS and workplace policies and procedures implementing the ETS.

1. OSHA has provided a sample mandatory vaccination policy template, as well as a sample policy covering vaccination, testing, and face coverings.

ii.  The CDC document “Key Things to Know About COVID-19 Vaccines” https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
iii.  Information about protections against retaliation and discrimination.
iv.  Information about laws that provide for criminal penalties for knowingly supplying false statements or documents.

• ETS requires that employers report COVID-19 fatalities that are work-related within eight hours of learning about them, and work-related COVID-19 hospitalizations (in-patient) within 24 hours of learning about them.

• The ETS requires employers make available to the employee (and to anyone to whom they have given authorized consent) copies of their COVID-19 vaccine documentation and testing results. They are also required to provide to an employee or employee representative the aggregate number of fully vaccinated employees in the workplace and the total number of employees at the workplace.

8. How are costs allocated under the ETS?

• All covered employers are required by the ETS to bear the cost of providing a reasonable amount of time to each employee for each of their primary vaccination series dose(s), which includes up to four hours paid time off, including travel time, at the employee’s regular rate of pay.

i.  The language implies there is no requirement for employers to provide time off for non-primary doses, e.g., boosters.
ii.Employers cannot offset these four hours with other leave. If, however, it takes an employee more than four hours to become vaccinated, then the additional time can be unpaid but protected leave.

• The employer must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.
• Where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of facial coverings.

i.  Employers should be aware that they may be required to pay for testing and/or face covering costs under other federal or state laws or collective bargaining obligations, and some may choose to do so even without such a mandate.

• The ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.

9. How does the ETS apply to federal contractors?

• The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance).
• The Contractor Guidance includes:

i.  mandatory COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
ii.  compliance by individuals, including covered contractor employees and visitors, with the Contractor Guidance related to masking and physical distancing while in covered contractor workplaces; and
iii.  designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces that are not affected by the ETS.

• On November 4, 2021, the Biden Administration extended the deadline for compliance with this mandate from December 8, 2021 to January 4, 2022.
• Federal contractors and subcontractors with less than 100 employees are not exempted from the requirements of the Contractor Guidance as a result of OSHA’s issuance of the ETS.

10. Is the ETS a proposed rule with opportunity to comment?

Although the ETS takes immediate effect, it is also a proposal under the Occupational Safety and Health Act and includes a section requesting comment on any aspect of the ETS and whether it should become a final standard. The ETS includes nine specific areas for comment including:

1. Specific questions aimed at smaller employers (e.g. less than 100 employees) regarding current vaccination policies, face covering requirements and the like in their businesses and the feasibility of implementing the requirements in the ETS in their small business;
2. Scope of the ETS as it relates to describing the risks COVID-19 poses in the workplace;
3. Identification of additional areas of scientific data related to infection and immunity based on prior infections;
4. Specific details of any mandatory vaccination policy implemented to date including, but not limited to, costs, percentage of compliance, verification of compliance, and experience with falsified records among other things;
5. Specific details of any mandatory testing policy to date including, but not limited to, requirements, costs, frequency, and removal from workplace policies following positive tests;
6. Usefulness of face coverings;
7. Best practices or implementing COVID-19 protection protocols in the workplace (e.g. lessons learned)
8. Educational materials for distribution regarding the benefits of vaccination; and
9. Additional data that would assist OSHA in considering the information on which it has relied to date in preparing the ETS.

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