MoFo Employment Law Commentary (ELC)

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standards for COVID-19 (the “ETS”) along with a landing page on its website with various compliance materials, FAQs, and a pre-recorded webinar. As expected, the ETS mandates that all employers with 100 or more employees require its employees to be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022. The ETS contains a host of other compliance obligations that employers will need to put in place by December 5, 2021, including having detailed written policies. Shortly after OSHA released the ETS, President Biden issued a Fact Sheet announcing that the December 8, 2021, COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations. 

Effective Dates

The ETS is effective today.  Employers, however, will have until December 5, 2021, to comply with all of the requirements of the ETS other than the vaccine and testing requirements. The vaccine and testing requirements will go into effect on January 4, 2022. 

OSHA anticipates that the ETS will be in effect for six months (i.e., May 5, 2022), but OSHA may update the ETS depending on how the pandemic evolves over the coming months. 

Covered Employers

As expected, the ETS will cover all employers that have 100-plus employees as of the November 5, 2021, effective date. Employers must count employees company-wide in the United States at all locations, including part-time, temporary, and seasonal employees, but can exclude independent contractors from those counts.

OSHA indicates that a single employer analysis can apply for determining coverage of corporate affiliates if those entities “handle safety matters as one company” such that they make up an “integrated single employer.” OSHA, however, said that franchisor and franchisees would generally be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise. In addition, employers using staffing agencies would not need to count employees of the staffing agency for coverage purposes.

OSHA noted that if employers have 100-plus employees as November 5, 2021, they will be covered for the duration of the ETS, even if they later drop below 100 employees. Employers with less than 100 employees can become subject to the ETS if they cross the 100-employee threshold during the duration of the rule.

Covered Employees and Workplaces

The ETS requirements apply to all employees (including part-time employees) of covered employers except for employees:

  • Who do not report to a workplace where other individuals are present (e.g., coworkers or customers);
  • Working exclusively from home; or
  • Working exclusively outdoors.

“Workplace” is defined in the ETS as a “physical location (e.g., fixed, mobile) where the employer’s work or operations are performed.”  It does not include an employee’s residence

The ETS also makes clear that only one set of federal vaccination rules will apply to employees.  The ETS was released at the same time as the vaccine mandate for the Centers for Medicare and Medicare Services, which covers certain healthcare workers. Employers with workplaces subject to the EO 14042 or the CMS rule will not be subject to the ETS. Employers, however, may have to contend with separate federal vaccine rules if they have some employees who are covered by the ETS and others that are subject to EO 14042 or the CMS rule. So, for example, if a federal contractor has a workplace subject to EO 14042, that contractor would only need to comply with EO 14042 for employees at that facility. If the same contractor had another workplace that was not covered by EO 14042, then that facility could be subject to the ETS or the CMS rule, as applicable. 

ETS Requirements

Written Policy Requiring COVID-19 Vaccinations or Regular COVID-19 Testing

The ETS requires covered employers to “establish, implement, and enforce” either:

  • A “written mandatory vaccination policy” requiring all employees to be fully vaccinated subject to limited exceptions; or
  • A written policy allowing any employee not subject to the mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or be subject to the COVID-19 testing and face covering requirements.

If a covered employer opts to implement a mandatory COVID-19 policy, it must ensure all employees, including all new hires, are fully vaccinated on or before January 4, 2022, subject to the following limited exemptions:

  • The vaccine is medically contraindicated for the employee;
  • Medical necessity requires a delay in the employee being vaccination; or
  • The employee is legally entitled to a reasonable accommodation due to a disability or sincerely held religious belief that conflicts with the vaccination requirement.

OSHA states in FAQs that employers in certain situations can develop different vaccination policies for different segments of their workforce. For example, a retail employer could have mandatory vaccination policy for retail stores and an optional vaccination and testing policy for employees who work at the headquarters or perform intermittent remote work. Of course, employers should be mindful of having similar policies for employees who are similarly situated to avoid possible discrimination claims.

Fully Vaccinated Defined

The OSHA ETS indicates that employees are “fully vaccinated” two weeks after receiving the second dose in a two-dose series (e.g., Pfizer or Moderna), or two weeks after receiving a single‑dose vaccine (e.g., Johnson & Johnson/Janssen). Vaccines are acceptable under the ETS if they are approved or authorized for emergency use by the FDA; listed for emergency use by the World Health Organization (WHO); or administered as part of a clinical trial at a U.S. site, subject to certain requirements. OSHA refers employers to the FDA or the WHO websites of a list of authorized vaccines. Booster shoots are not required for employees to be fully vaccinated. Employees are not exempted from vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. 

Legally Entitled Accommodations Allowed

OSHA acknowledges that employers must grant requests for accommodations due to disabilities or sincerely held religious beliefs, but refers employers to the Equal Employment Opportunity Commission (EEOC) guidance on how to process those accommodations. Employers must still require employees who receive an exemption from COVID-19 vaccines due to a medical contraindication, medical necessity, or accommodation for a disability or sincerely held religious belief to comply with the masking and testing requirements under the ETS, unless those employees have an accommodation from those requirements or work remotely.

Proof of Vaccinated Status Required but Can Include Self-Attestation

Employers must require covered employees to provide “acceptable proof of vaccination status, including whether they are fully or partially vaccinated.”   Acceptable proof of vaccination status includes any of the following:

  • Record of immunization from a healthcare provider or pharmacy
  • Copy of the COVID-19 Vaccination Record Card;
  • Copy of medical records documenting the vaccination;
  • Copy of immunization records from a public health, state, or tribal immunization information system; or
  • A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s).

Employees unable to provide that documentation are allowed under the ETS to self-attest to their vaccination status. The self-attestation must include the following:

  • Attesting their vaccination status (fully or partially vaccinated);
  • Attesting to (as best can be recalled) the type of vaccine administered, dates of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s);
  • Attesting that they have lost their vaccination documentation and are otherwise unable to provide proof; and
  • A statement by the employee saying “I declare (or certify, verify, or state) 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.”

Employees who fail to provide an acceptable proof of vaccination or self-attestation must be treated as not fully vaccinated for purposes of the ETS and subject to COVID-19 testing and masking.

OSHA says that employers are “not required to monitor for or detect fraud” for vaccine documentation, but employers who knowingly accept falsified vaccination documentation from employees may be subject to criminal and other penalties.

Unvaccinated Covered Employees Subject to Regular COVID-19 Testing

The ETS requires all unvaccinated employees who report to the employer’s workplace at least once a week to submit to a COVID-19 testing at least once every seven days and provide documentation of their results within a week of the test. Unvaccinated employees who do not report to the workplace at least once a week must submit to COVID-19 testing within seven days prior to returning to the workplace and provide their test results upon return to the workplace.

Employees who fail to provide documentation of their negative COVID-19 test result must be barred from the workplace until they can provide a negative COVID-19 test result. Employers cannot require employees who test positive for or are otherwise diagnosed by a licensed healthcare provider with COVID-19 to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis. The reason for this requirement, according to OSHA, is that there is a high likelihood of false positive results within 90 days after an employee has tested positive or been diagnosed with COVID-19. 

The ETS only permits employees to use COVID-19 tests that have been cleared, approved, or authorized by the FDA to detect COVID-19 (e.g., a viral test). In addition, employees cannot self-administer COVID-19 tests unless observed by the employer or an authorized telehealth provider. 

Many employers have feared that there may not be a sufficient supply of COVID-19 tests available or labs to process them to keep up with demand under the ETS. Although OSHA states that it believes this will not be an issue, OSHA said that it will consider refraining from enforcement where employers attempt in “good faith” to comply with the ETS.

Removal Required for Employees Who Test Positive

Employers must require employees (regardless of vaccinated status) to “promptly notify” them when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. Once notified, employers must remove those employees from the workplace and keep the employee removed until the employee either:

  • Receives a negative COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test;
  • Receives a recommendation to return to work from their licensed healthcare provider.

Employees that have been removed from the workplace can still work remotely, but employers should not require them to work if they are too ill. Notably, the ETS does not require contract tracing or removal of an unvaccinated employee if they have been exposed to a COVID-19 positive person—removal is only required for a positive COVID-19 test or diagnosis. 

Face Coverings Required for Not Fully Vaccinated Employees

The ETS requires all employees who are not fully vaccinated to wear “face coverings” when indoors and when in a vehicle with others for work, subject only to the following limited exceptions:

  • When alone in a closed office with the door closed;
  • When eating or drinking or for identification purposes;
  • When the employee is wearing a respirator or facemask; or
  • When the use of face coverings is infeasible or creates a hazard that would excuse compliance (e.g., wearing a face covering creates risk of serious injury).

The ETS defines “face coverings” as a covering that completely covers the nose and mouth and that meets all the following requirements:

  • Is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source);
  • Is secured to the head with ties, ear loops, or elastic bands that go behind the head.
  • Fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and
  • Is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings.

Employers must ensure that employees properly wear their face coverings to fully cover their nose and mouth and replace it if it is damaged (e.g., wet, has holes, or broken ear loops). Employers can allow employees to wear face shields in addition to face coverings or allow employees to voluntarily choose to wear a respirator instead of a face covering. If an employer chooses to provide respirators to its employees, the employer must comply with the OSHA standards for respirators. 

Employers Not Required to Pay for Testing or Face Coverings

Employers have the option of whether they want to pay for the costs associated with COVID-19 testing or face coverings. As OSHA notes, however, employers may still have to pay for face coverings or COVID-19 testing under other federal, state, or local laws or for unionized employees under collective bargaining agreements.

Paid Time Off Required for Vaccinations and Vaccine Side Effects—Not Positive Tests

The ETS requires employers to provide time off for employees to get vaccinated and recover from any side effects from the vaccination. 

  • Time to Get Vaccinated: Employers are required to provide “reasonable time” during work hours for employees to get each required dose of COVID-19 vaccine, including providing up to four hours of paid time off at their regular rate of pay. Employers cannot require employees to use their accrued, unused paid sick leave or vacation in lieu of the four hours of paid time off. Employees, however, may voluntarily opt to get their vaccine doses during non-working time, in which case, the employer would not have to provide paid leave for the time spent getting vaccinated. Transportation costs (e.g., gas, bus fare, etc.) employees incur going to get vaccinated do not have to be reimbursed, unless otherwise required by state or local law.
  • Recovery from Side Effects: If an employee experiences side effects from any dose of the vaccine, the employer must provide that employee “reasonable time” and paid sick leave to recover. Employers can set a cap of up to two days of paid sick leave to recover. Employers can require employees to use accrued, unused paid time off, or sick leave for the time spent recovering, but employees cannot be forced to use their vacation time (if the employer has separate sick and vacation policies) or required to go into negative paid sick leave status. 
  • Positive Tests: No paid time off is required for employees who are removed from the workplace due to a positive COVID-19 test or diagnosis. As OSHA notes, however, employers may still have to pay for time off under other state or local laws or for unionized employees under collective bargaining agreements.

Policies and Notices Must Be Provided to Employees

The ETS mandates that employers inform employees of the requirements of the ETS as well as any policies or procedures established by the employer to implement the ETS. Policies and procedures must be communicated in a language and at a literacy level employees understand. According to an FAQ, employers must have written policies that address all applicable requirements, including requirements for COVID-19 vaccinations, exclusions or accommodations, paid time off, etc.  OSHA also states that the policy should include the “policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated, etc.), and procedures for compliance and enforcement, all of which are necessary components of an effective plan.”

Employers must also notify employees of:

  • The prohibitions against retaliation of an employee for reporting a work-related injuries or illness, filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the Occupational Safety and Health Act of 1970 (the “OSH Act”); and
  • Criminal penalties associated with knowingly supplying false statements or documentation.

Employers can make their policies and notices available to employees through their “normal methods of distributing information to employees.”   

Storage of Vaccination and Testing Information

The ETS requires employers to maintain certain records, including:

  • A copy of proof of vaccination for each vaccinated, covered employee (seeing a copy of vaccination documentation is not sufficient);
  • A roster of each employee’s vaccination status, clearly indicating for each employee whether they are fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status; and
  • Each COVID-19 test result provided by covered employees. 

This documentation must be treated as “medical records” and preserved while the ETS remains in effect and not disclosed except as authorized by the ETS or other federal law. It is important to note that these documents are not subject to OSHA’s “employee medical records” retention requirement that necessitates keeping records during employment plus 30 years, subject to exceptions.

Employers also do not need to maintain records of employee notifications of a positive COVID‑19 test result or diagnosis, although an employer might need to record that information on an OSHA Form 300, 300A, and 301 (or equivalent form) if the COVID-19 test result or diagnosis is work-related.

Mandatory Reports to OSHA

Employers will have to report to OSHA:

  • Any work-related COVID-19 fatalities within 8 hours of an employer learning of the fatality; and
  • Any work-related COVID-19 in-patient hospitalization within 24 hours of learning about the hospitalization.  

Employers have three options for reporting work-related fatalities and in-patient hospitalizations to OSHA: (a) by telephone to the OSHA Area Office that is nearest to the site of the incident; (b) by telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1‑800‑321‑6742); or (c) by electronic submission using the reporting application located on OSHA’s public website at www.osha.gov.

Prompt Disclosure of Records to Employees, Employee Representatives, and OSHA Required

OSHA, employees, and employee representatives will have the authority to request records from employers to determine compliance with the ETS. 

  • Aggregate Employee Vaccination Status: The ETS provides that within four “business hours” of a request by OSHA or by the end of the next business day if requested by an employee or their representative (whether or not the request was in writing), employers must provide the aggregate number of fully vaccinated employees at the workplace and the total number of employees at the workplace. OSHA says that this information will allow it to “more rapidly focus inspections on an employer that may not be in compliance” with the ETS or rely on employees and their representatives to “help ensure compliance” with the ETS. 
  • Individual COVID-19 Records: Employers must make available the individual COVID-19 record for that employee or their COVID-19 test results by the end of the next business day after the request by that employee or the employee’s representative.
  • OSHA Inspection: Employers must also provide OSHA a copy of their written policies for compliance with the ETS within four business hours of a request. All other documents requested by OSHA must be provided by the end of the next business day after the request.

Effects Bargaining with Unionized Workers May Be Required

Employers with unionized workers must still follow the minimum ETS requirements. The ETS, however, does not displace collective bargaining agreements that exceed the requirements of the ETS and does not negate the duty to bargain about the effects of the ETS.

OSHA Enforcement

OSHA will use its standard enforcement process for the ETS, including unplanned inspections and citations for noncompliance. Under OSHA rules, noncompliant employers can face fines up to $13,653 for each serious violation and fines up to $136,532 for any willful or repeat violations.

State OSHA Plans and State Laws Banning Vaccines

The ETS minimum standards apply equally in states governed by the OSHA standards and states with previously approved “state plans.” In states governed by OSHA standards, the rule became effective immediately upon being published.  States with OSHA approved “state plans” (currently about 22 states) have until December 4, 2021, to submit changes to their plans that make them at least as effective as the federal standard. OSHA notes that the ETS will preempt any “state plan” that is not updated by December 4, 2021.

Interaction with State Laws Banning Vaccines

One of the stated purposes of the ETS is to preempt all “inconsistent state and local requirements relating to” standards for vaccinations, vaccination verification, face coverings, and testing requirements in the workplace. According to OSHA, state laws must be updated to be “at least as effective” as the ETS to avoid preemption. Essentially, the ETS requirements are a floor rather than a ceiling. The ETS allows states, localities, and employers to set additional standards that go beyond the ETS.

A number of jurisdictions have passed (e.g., Texas) or are considering issuing (e.g., Florida) laws banning or making it difficult for private employers to require COVID-19 vaccines. Although the ETS explicitly overrules such restrictions, many states are gearing up to challenge the ETS in court. Just a day after release of the ETS, Missouri and 10 other states filed a petition for judicial review in federal court, and more lawsuits are likely to follow from other states and business groups. A group of Republican U.S. Senators also plan to force a vote to block the ETS, but that effort will likely fail with the current Democratic-controlled Congress.

Practical Steps for Compliance

The ETS will undoubtedly cause employers to scramble to meet the rapidly approaching December 5, 2021, and January 4, 2022, deadlines for compliance. Despite the already filed and anticipated additional legal challenges to the ETS, employers will act at their own peril if they wait to see how those lawsuits play out since they may not be successful or reach a resolution before the compliance deadlines.

In the meantime, employers should start preparing for the ETS and the many legal and practical issues they will face with rolling this out. A few items to consider doing now:

  • Review and Update COVID-19 Policies and Strategies: As an initial matter, covered employers will need to consider their COVID-19 policies and protocols in light of the ETS. Employers with existing policies for COVID-19 vaccines, testing, or masking should review their policies in light of the ETS and make adjustments as needed for compliance. Employers without such policies should start to develop one promptly.  Sample policies for mandatory vaccines and vaccination or testing are available on OSHA’s website.
  • Survey and Document Employee Vaccination Rates: Businesses that have not already surveyed or collected documentation of vaccination status for their workforce should consider putting that in place soon. Having that information is not only required by the ETS, but it also can provide valuable insights on the impact of the vaccination, testing, and other ETS requirements to assist businesses with their planning efforts. Employers with a high vaccinated employee population will have less of a compliance burden than employers with a low vaccinated worker populations. With a tight labor market and potential business pressures due to the ongoing supply chain shortages, employers should also consider instituting campaigns to encourage employees to become fully vaccinated now, such as offering on-site vaccination. Given that employees will not be considered fully vaccinated until two weeks after their last dose of the COVID-19 vaccine, employees will have to be fully vaccinated by December 18, 2021, or otherwise be subject to the COVID-19 testing and masking protocols on the ETS unless or until they become fully vaccinated.
  • Designate Compliance Officials: It is important to identify individuals and departments that will be responsible for compliance with the ETS. Those officials will need to be prepared to deal with the host of new compliance obligations, including collection and storage of COVID-19 vaccination status and test results, responding to accommodation requests, processing requests for time off for vaccination and recovery, bargaining the effects of the policy if there is a unionized workforce, and communicating with employees who test positive for COVID-19. 
  • Review and Update Accommodation Processes: Employers should expect to see an increase in accommodation requests for medical reasons and sincerely held religious beliefs.  Employers will need to make sure their HR and accommodations teams have the appropriate resources, staffing, and training to handle the increased volume of requests and are prepared to handle the difficult issues that arise when reviewing requests for religious accommodations.
  • Create a Communication Plan: Employers will also need to think about their communication plan for the ETS. This includes issuing the required vaccination and/or testing policy and distributing the CDC document and other information required by OSHA, which can be found here and here.  
  • Train Managers and Supervisors: Managers should also be trained on the ETS and the employer’s policies for compliance with the ETS.  Such training will not only ensure that they are familiar with employer’s protocols for the ETS, but it also will prepare them to appropriately advise employees of the policy and of the consequences should they fail to follow it. 

Be Mindful of More Restrictive State Laws: Employers should be mindful of state laws that may be more restrictive than the ETS. For example, although the ETS does not require that employers pay for the cost of testing or face coverings for unvaccinated employees, covered employers should not forget to check state laws too as they may require employers to cover the costs for COVID-19 tests, face coverings, and the time an employee spends getting tested. 

Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

[View source.]

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.

© MoFo Employment Law Commentary (ELC) | Attorney Advertising

Written by:

MoFo Employment Law Commentary (ELC)

MoFo Employment Law Commentary (ELC) on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide