OSHA Issues Emergency Temporary Standard for COVID-19: Get Vaccinated or Get Tested

Wilson Sonsini Goodrich & Rosati

On November 5, 2021, the Occupational Safety and Health Authority (OSHA) issued an Emergency Temporary Standard for COVID-19 Vaccinations and Testing (the ETS), which imposes obligations on many employers to implement mandatory vaccination or regular COVID-19 testing policies. Employers must become compliant with the ETS's requirements by no later than December 5, 2021, except that employers will not need to begin conducting regular COVID-19 testing for unvaccinated employees until January 4, 2022.

This Alert discusses the scope of the ETS, as well as the obligations it imposes on employers with regard to vaccination, testing, face coverings, and recordkeeping. And, while it has been temporarily stayed by the United States Court of Appeals for the Fifth Circuit and is not enforceable while the court considers its validity (as discussed below), employers should become familiar with the ETS and prepare to comply with its requirements, specifically those provisions that require compliance by December 5, 2021.

Scope

The ETS applies to employers with a "total of 100 or more employees" while the regulation remains in effect. The number of employees must be assessed corporation-wide, not just at a single location, and must include all employees in the United States, regardless of whether they are employed part-time or full-time. Independent contractors should not be included in the count. The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, the ETS applies for the duration of the standard, regardless of subsequent fluctuations in headcount. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer unless it subsequently hires more workers and hits the 100-employee threshold for coverage, in which case the employer would then be expected to come into compliance with the standard's requirements.

The requirements of the ETS do not apply to employees who a) work exclusively outdoors, b) work from home, or c) report to a workplace where no other people are present. However, employees who fall within one of these exceptions are not discounted from the 100-employee threshold which determines whether the ETS applies in the first place. For example, if an employer has 100 employees and 98 of them work from home, the ETS would apply to that employer's two employees who are not remote workers. Also, employers that utilize staffing agencies do not need to count employees supplied by the staffing agency towards the 100-employee threshold for coverage.

OSHA intends for the ETS to preempt and invalidate any state or local requirements that ban or limit an employer's authority to require vaccination, face covering, or testing. However, the ETS does not preempt generally applicable requirements meant to prevent the spread of COVID-19 in public spaces. This includes requirements that everyone wear face coverings in indoor spaces, or that members of the public provide proof of vaccination or recent COVID-19 testing to enter restaurants, bars, or other public spaces.

Vaccination Policy Requirements and Mandatory Face Coverings—December 5, 2021 Deadline

By December 5, 2021, employers must implement a written mandatory vaccination policy requiring each employee to be fully vaccinated or to become fully vaccinated as soon as practicable, except for employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or who are legally entitled to a reasonable accommodation under federal civil rights law because they have a disability or a sincerely held religious belief. Alternatively, the ETS permits employers to implement a regular testing policy, the requirements of which are detailed below.

As part of the mandatory vaccination policy, the employer also must determine the vaccination status of each employee by December 5, 2021 by requiring that employees provide proof of vaccination status, not including booster shots or additional doses. Acceptable proof includes a copy of a vaccination card or other medical or immunization records officially kept on file which details the type of vaccine administered, the dates of administration, and the name of the provider who administered the vaccine. Self-attestation is not permissible except in limited circumstances.1 However, it is important to note that the ETS provides that when an employer has ascertained employee vaccination status prior to December 5, 2021 "through another form of attestation or proof," which presumably includes self-attestation, and retained records of that ascertainment, the employer is exempt from the requirements to determine vaccination status and collect additional proof of vaccination status with regard to each employee whose fully vaccinated status has been documented prior to December 5, 2021. In other words, for employees who became fully vaccinated prior to December 5, 2021, the employer need not seek or obtain additional proof of vaccination status if it ascertained attestation or proof of such status prior to December 5, 2021 and has retained records of such attestation or proof.

An individual is considered fully vaccinated two weeks following a full course of vaccination with an approved vaccine or a combination of approved vaccines. Approved vaccines include a) any vaccine approved or authorized for use by the U.S. Food and Drug Administration (FDA), b) any vaccine listed for emergency use by the World Health Administration, and c) certain vaccines received as part of a clinical trial in the United States. Having been previously diagnosed with COVID-19 does not amount to vaccination under the ETS.

Employers must provide a reasonable amount of time during working hours for employees to obtain their primary vaccination doses, including up to four hours of paid time off. This time off cannot be offset by any other accrued leave, such as sick leave or PTO. Employers also must provide reasonable time for employees to recover from side effects experienced following any primary vaccination dose. If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from such side effects. State and local laws may obligate employers to provide paid leave to employees for purposes of seeking or recovering from primacy vaccination, or in relation to booster shots.

Employers that do not wish to impose a mandatory vaccination policy may instead adopt a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing, as discussed below. Alternatively, OSHA recognizes that there may be employers who implement a partial mandatory vaccination policy, which applies to certain segments of the workforce, while treating vaccination as optional for others and requiring unvaccinated workers in the later group to undergo regular testing. Employers opting for such a hybrid model must ensure that they align the policy with legitimate business reasons to avoid discrimination claims, i.e., mandating vaccination for employees who have contact with customers while permitting staff working in isolated offices to opt for regular testing.

Additionally, employers must implement and enforce a policy requiring all employees who are not fully vaccinated (regardless of whether an employer has instituted a mandatory vaccine policy) to wear a mask or other face covering while indoors or when occupying a vehicle with another person, unless alone in a fully enclosed room with a closed door, for a limited time while eating or drinking, or where a face covering presents a hazard to the employee (e.g., becoming tangled in machinery) or where the employee's job duties make it important to be able to see the employee's mouth. Face coverings must be worn properly, covering the nose and mouth, and face coverings must be replaced if wet, soiled, or damaged. Employers may not prevent any employee from voluntarily wearing a mask, unless doing so creates a hazard of serious injury or death.

COVID-19 Testing and Positive Test or Diagnosis Requirements—January 4, 2022 Deadline

Covered employers that decide not to implement a mandatory vaccination policy must implement a regular COVID-19 testing policy by January 4, 2022 for all employees who are not fully vaccinated or received at least the first of a two-shot regimen. Pursuant to such policy, unvaccinated employees who report to a workplace where other individuals are present at least once every seven days must be tested for COVID-19 at least once every seven days.

Employer-implemented COVID-19 testing will not be compliant with the ETS unless it is: i) FDA authorized, ii) administered in accordance with the authorized instructions, and iii) not both self-administered and self-read by the employee unless observed by the employer or an authorized telehealth proctor. Employers should ensure that a written testing policy specifies the type of test and process that employees must use to administer and report the result to the employer.

Except as otherwise provided by state law (such as Cal. Labor Code § 2802), local law, or by a collective bargaining agreement, employers do not have to pay for the cost of an employee's choice to undergo regular testing rather than receive the COVID-19 vaccination. Employers might nevertheless elect to cover the cost in order to remove an impediment to testing, maintain control over the type and timing of testing, and to facilitate collection of the test records.

If an employee fails to provide documentation of a negative COVID-19 test as required, the employer "must keep that employee removed from the workplace until the employee provides a test result." Employers must also require employees (regardless of their testing results or vaccination status) to promptly notify the employer of a positive test or diagnosis of COVID. Any employee who has tested or received a positive diagnosis for COVID must immediately be removed from the workplace until a) receiving a negative COVID nucleic acid amplification test (NAAT) after receiving a positive antigen test, b) meeting the return to work criteria in the CDC's Isolation Guidance, or c) receiving a recommendation to return to work from a licensed healthcare provider.

Employers may terminate or take other disciplinary action against employees who refuse or fail to comply with policies implemented to comply with the ETS, including mandatory vaccination or regular testing policies and face covering requirements.

Recordkeeping, Reporting, and Notice

The ETS imposes several recordkeeping requirements. As of December 5, 2021, covered employers must a) maintain a roster of each employee's vaccination status, and b) preserve each employee's proof of vaccination or partial vaccination. As of January 4, 2022, the ETS requires employers to maintain records of each COVID test result provided by an employee. The records and roster are considered employee medical records and must be kept confidential and maintained for as long as the ETS remains in effect. The ETS specifically excludes COVID-19 vaccination and testing records from the OSHA requirement that employers maintain employee medical records for 30 years.

The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning of the fatality and to report work-related COVID-19 in-patient hospitalizations to OSHA within 24 hours of learning of the hospitalization. OSHA has recognized that determining whether exposure to COVID-19 was work-related can be difficult, and requires an assessment of all facts and circumstances.

The ETS also creates several notification requirements, obligating employers to inform employees about their policies and procedures that comply with the ETS, a "Key Things to Know About COVID-19 Vaccines" document from the Centers for Disease Control and Prevention, information related to employees' protection from retaliation for reporting work-related injuries or illnesses or otherwise reporting concerns to OSHA, and OSHA prohibitions which provide criminal penalties for supplying false statements or documentation.

Implications and Key Takeaways

Enforcement of the ETS was recently stayed. In its brief ruling on November 6, 2021, the Fifth Circuit Court of Appeals granted an emergency motion to temporarily stay the ETS nationwide, citing "grave statutory and constitutional issues," and ordered the parties to submit further briefing on the issues for an expedited judicial review. A number of other legal challenges also have been filed.2 Many of the pending legal challenges contend that OSHA exceeded its statutory authority in issuing the ETS. Given the number of challenges and the likelihood of inconsistent rulings, the fate of the ETS may ultimately be decided by the U.S. Supreme Court.

Nevertheless, employers should prepare for the possibility that courts uphold the rules as written, especially in light of the short window of time to come into compliance. Employers who adopt a mandatory vaccination policy should develop an internal process to navigate requests from employees for religious and disability-related exceptions in a consistent manner, with proper consideration of the applicable factors and standards. Employers also should carefully consider whether to adopt a COVID-19 testing policy in lieu of a mandatory vaccination policy, including by determining how each policy would affect employee retention.

With only one compliance officer for every 70,000 workers, it will be challenging for OSHA to proactively investigate and enforce compliance with the ETS. Employers should anticipate OSHA inspectors to focus their attention on responding to employee complaints, worksites with a high number of reported infections or deaths, or to add ETS compliance to an inspection checklist when onsite for other reasons. States with their own occupational safety and health enforcement agencies will be required to adopt a standard identical to the ETS, or one that is "at least as effective as" the ETS, by no later than December 5, 2021. Employers should scrutinize any such standards, which may be more onerous than the ETS. Penalties associated with ETS compliance can be significant: OSHA may fine a covered employer up to $13,653 per violation of the ETS that is classified as serious or other than serious, and up to $136,532 per willful or repeated violation.


[1] Where an employee cannot provide such proof of vaccination, an employee may submit a signed and dated statement attesting to their vaccination status, that they have lost or otherwise cannot provide proof as requested, the employee’s best recollection of the provider who administered the vaccine, the dates of administration, the type of vaccine administered, and the following attestation:

I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.

[2] Lawsuits challenging the ETS have been filed in the U.S. Court of Appeals for the Fifth, Sixth, Seventh, Eight, Eleventh, and D.C. Circuits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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