On November 4, 2021, the Occupational Safety and Health Administration of the U.S. Department of Labor (“OSHA”), issued its long-awaited Emergency Temporary Standard (“ETS”), applicable to employers with at least 100 employees. The ETS was issued by OSHA pursuant to President Biden’s COVID-19 Action Plan, announced last month, and provides minimum requirements in the implementation of mandatory vaccination policies. The 490 page ETS is effective immediately, and preempts or supersedes any state or municipal law that conflicts with its requirements.
Following is our take on some of the ETS’s material requirements:
A. Effect of ETS on State Laws
The ETS supersedes any state or municipal requirement that relates to occupational safety and health issues of (i) vaccination, (ii) face coverings, and (iii) COVID-19 testing, except under a state plan that is submitted to and approved by OSHA (“State Plan”). The ETS invalidates any state or local laws that ban or limit an employer’s authority to require vaccination, face coverings, or COVID-19 testing. The ETS does not supersede state and local requirements that apply generally to the public health. For example, state or local laws that require vaccination or recent testing to enter public spaces remain in effect because such laws apply to “workers and nonworkers” alike.
B. Counting Employees for Purposes of the 100-Employee Threshold
The ETS applies to employers, who employ at least 100 employees at any point during the time that the ETS is in effect. All full-time and part-time employees are counted, including employees, who work remotely. Remote workers working from home are counted, but are not required to be vaccinated and/or tested on a regular basis, provided that the ETS applies to them if they come to the workplace.
C. ETS’s Application to Healthcare Settings
The ETS does not apply to employees in settings that are already covered by a previously-issued Healthcare ETS, which provides similar, but not identical requirements.
D. Mandatory Vaccination of Employees
The ETS requires employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, but permits employers to allow employees who are not fully vaccinated to elect to submit to weekly COVID-19 testing and wear a facemask at work. The ETS does not require employers to afford employees with a testing option. Employers that choose instead to mandate vaccination as a term or condition of employment are in compliance with the ETS.
The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose during work hours, plus reasonable time and paid sick leave to recover from the vaccination side effects. An employee may use the employer’s paid sick leave benefits otherwise available for time off recovering from vaccination side effects, but not for time spent getting vaccinated.
E. Reasonable Accommodations
The ETS does not authorize employers to avoid their obligations to provide reasonable accommodations for medical contraindications or sincerely-held religious beliefs. All unvaccinated employees, regardless of whether they are unvaccinated for medical or religious reasons, are required to be tested, unless the testing likewise conflicts with the employee’s medical condition or sincerely-held religious beliefs.
F. Recordkeeping for COVID-19 Test Results
Employers are required to maintain copies of test results provided by employees under the ETS. Such records must be maintained and preserved while the ETS is in effect.
G. Costs of Testing
The ETS does not require employers to pay for COVID-19 testing, although state and local laws or collective bargaining agreements may require employers to pay.
H. Face Coverings
The ETS defines a “face covering” and mandates employers, that permit testing in lieu of vaccination, to require that unvaccinated employees wear face coverings in the workplace.
I. Reporting COVID-19 Fatalities and Hospitalizations
Employers are required to report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA. The ETS provides standards for determining whether such a fatality or hospitalization is work-related.
J. Informing Employees about the ETS
The ETS requires employers to provide employees (i) information about the ETS and the employer’s required mandatory vaccination policies, (ii) copies of the CDC’s “Key Things to Know About COVID 19 Vaccinations”, and (iii) information about retaliation and discrimination; and (iv) information about laws that impose criminal penalties for knowingly providing false statements or documentation under the ETS.
K. Compliance Date Deadlines
The ETS is effective on November 5, 2021. All unvaccinated employees must begin wearing masks by December 5, 2021. Employees must complete the vaccination process within 60 days, by no later than January 4, 2022. COVID-19 testing is not required until after January 4, 2022.
OSHA expects that the ETS will remain in effect for six months, but may be modified or extended depending on the pandemic.
The ETS requires covered employers to take immediate action to comply with its requirements. Many employers already have mandatory vaccination policies in place, but are still required to review those policies to ensure that they comply with the ETS. Although modifications to the ETS are likely, we will continue to keep you informed of such developments.