The Occupational Safety and Health Administration (OSHA) released a widely anticipated Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to ensure its employees are either vaccinated against COVID-19 or be tested weekly. Employees must be fully vaccinated or commence weekly testing by January 4, 2022. Covered employers must begin complying with the other requirements, like masking for unvaccinated employees and implementing a policy, by December 5, 2021. The ETS also preempts any inconsistent state or local laws, including bans on employers’ authority to require masking, vaccination, or testing. The 5^th Circuit Court of Appeals has temporarily stayed the ETS, however the Biden Administration believes the ETS will withstand this and any other legal challenges. Winthrop & Weinstine, P.A. will continue to monitor the legal challenges to the ETS and provide updates, as available.

Does My Organization Have 100 Employees?

The ETS will apply to an estimated 84 million workers, roughly two-thirds of the nation’s private sector workforce. The ETS covers all employers in workplaces subject to OSHA’s authority, including, among others, manufacturing, retail, construction, and agriculture. A question on the minds of many employers nationwide is – who is included in the 100-employee threshold? This question is key to determining which employers have to comply with the new ETS. Employers must comply with the rule if they have 100 or more employees at any time while the ETS is in effect. The following guidance from OSHA explains how employers must count employees in determining the 100-employee threshold:

1. Employers must aggregate the number of employees across all of their US locations.
   • In a traditional franchisor-franchisee relationship, in which each franchise location is independently owned and operated, the franchisor only counts corporate employees, and each franchisee would count employees of its respective franchise.
   • If two or more related entities handle safety matters as one company, the entities may be regarded as a single integrated employer for purposes of counting employees of both related entities.
2. Independent contractors are not counted.
3. Part-time employees are counted.
4. Seasonal and temporary workers are counted.
5. Employees under age 18 are counted.
6. Staffing agencies that place employees at host employer locations count those employees, but the host employer does not.
7. Federal workers and contractors and healthcare workers are subject to separate rules.

The ETS does not apply to employees who never work in an office and never meet with co-workers or customers, or employees who work exclusively outdoors, but they still must be included to determine if the 100 employee threshold is met.

What to Do if My Organization Meets the 100-Employee Threshold?

Under the ETS, if the legal challenges are resolved, employers must implement a mandatory vaccination policy by December 5, 2021. The policy must include a process for medical and religious accommodations and provide for paid time off for employees who get vaccinated during work hours. Employees must receive up to four hours of paid time to receive their vaccine, excluding boosters. They must also receive reasonable time off, to be determined by the employer, for side effects related to the vaccination. Any additional time relating to the vaccination does not need to be paid, but if it is reasonable, an employee cannot be terminated for taking it. An employer may require an employee to use paid sick leave or paid time off when recovering from side effects from a primary vaccination dose, but employees cannot be forced to use vacation (if vacation is separate from sick leave). According to the ETS, employers are not required to pay for any of the “costs associated with testing” or incidentals incurred during the vaccination process unless otherwise required by applicable state laws, regulations or a collective bargaining agreement (CBA). The Department of Labor’s Wage and Hour Division intends to clarify in its guidance whether an employer is required to pay for an employee’s time getting tested.

Employees need to provide proof of vaccination to their employer, which can be accomplished by providing copies of records from their healthcare provider or pharmacy, vaccination record cards, medical records documenting the vaccination, immunization records from a public health, state, or tribal immunization informational system, or any other official documents. Employers need to maintain these records as long as the ETS is in place, and this information should be maintained separately from an employee’s personnel file.

If an employee is not fully vaccinated, the employee must provide proof of a negative test at least once every seven days. Employers are not required to offer testing as an option to its employees.  If employers choose to allow testing as an option, eligible tests include those that are cleared, approved or authorized (including under an EUA), to detect current infection with SARS-CoV-2 (e.g., a viral test) as long as the test is administered in accordance with the authorized instructions; antibody tests are not acceptable. Over-the-counter antigen tests may be used, but may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Any employees who test positive must be removed from the workplace immediately, and may return only when they receive a negative test result on a nucleic acid amplification test, meet criteria put forth by the CDC Isolation Guidance, or have a recommendation from a licensed healthcare provider. Employers are not required under the ETS to provide paid leave during this time, but state and local laws may require paid leave. Unvaccinated employees must wear a mask or other face covering while indoors or occupying the same vehicle as another person for work purposes. If the employee is unable to wear a mask for medical or religious reasons, they may request a reasonable accommodation.

Employers must report COVID-19 related fatalities within eight hours of receiving the information, and must report hospitalizations within twenty-four hours.

What if an Employee Asks for a Religious or Medical Exemption?

Employees with medical or religious objections to the vaccine or masking requirements may submit a request for a reasonable accommodation. Once an employer is on notice that an employee has a medical condition or sincerely-held religious belief which they claim conflicts with the job requirements, the employer must engage in an interactive process to determine if, without undue hardship to the employer, a reasonable accommodation may be granted. If the employer has an objective reason to doubt the sincerity of the religious belief, the employer can ask for additional information and perform a fact inquiry. Employers may not reject requests based on the fact that a belief is unfamiliar. Winthrop & Weinstine is ready to assist employers needing assistance on how to evaluate medical or religious accommodation requests.

How will this be Enforced?

Covered employers could face fines of up to approximately $14,000 for serious violations of the ETS, and roughly ten times that amount for willful or repeated violations. Compliance with this rule may be added to inspection lists when OSHA inspectors are on-site at an employer’s workplace.

Begin Preparing Now

The December 5, 2021 and January 4, 2022 deadlines (which will remain if the legal challenges are resolved) will be here before you know it. Your business should begin preparing now so that you do not face compliance issues or have to scramble on the eve of either deadline.

If the legal challenges are resolved, effective December 5, 2021, employers must:

1. Require masking indoors for employees who have not been fully vaccinated;
2. Provide up to four hours of paid time off for employees to receive the vaccine; and
3. Develop, implement, and enforce a policy requiring full vaccination or mandatory weekly testing and face coverings.

If the legal challenges are resolved, effective January 4, 2022, employers must:

1. Obtain proof of the vaccination status of all employees to be kept while the ETS is in place, and maintain a roster of each employee’s status; and
2. Require weekly testing of all unvaccinated employees if the employer intends to allow for testing or for those employees who requested and received an accommodation to vaccination.

Employers must also make available to employees in a language and literacy level the employees will understand:

1. Information about the requirements of the ETS;
2. Workplace policies and procedures established pursuant to the ETS;
3. The CDC’s “Key Things to Know About COVID-19 Vaccines”;
4. Information about protections against discrimination and retaliation; and
5. Information about criminal penalties for knowingly providing false documentation or statements.