On November 12, 2021, Stephanie Baron, Kirsten Eriksson, Suzzanne Decker, Veronica Jackson, and Paolo Pasicolan of Miles & Stockbridge’s Labor, Employment, Benefits, & Immigration Practice presented a webinar about the OSHA’s recent Emergency Temporary Standard (“ETS”).

Here’s what you missed if you were unable to attend:

Challenges to OSHA’s ETS
As you may have heard in the news, there have already been several challenges to the legality of the ETS. The 5th Circuit issued a temporary injunction against enforcement of the ETS, and in response, OSHA has announced a stay on enforcing the ETS pending further judicial action. The multiple cases that had been filed relating to the ETS have been consolidated and will be heard by the Sixth Circuit. While these lawsuits may make employers want to press pause on implementation, employers will have many difficult decisions to make and may want to use the time during this stay wisely. If the stay is lifted, it is likely that employers will have only a short timeline to come into compliance with the law.

Which Employers Does the ETS Cover?
The ETS applies to employers with 100 or more employees (as of November 5, 2021 or any time during the duration of the ETS), including part-time, temporary, and seasonal employees, regardless of where the employees are located. When counting employees, employers should include remote employees and employees who work exclusively outdoors, even though those employees do not have to comply with vaccination and testing mandates.

One question left unanswered by the ETS is whether employers who are affiliated with other companies should count the employees of all companies for the purposes of determining whether they have 100 employees. While it is not entirely clear, we recommend employers should consider whether their companies are integrated and whether they are generally treated as joint employers under other laws. If they are generally considered affiliated or integrated employers, employers should count the employees of all of the affiliated companies to determine whether there are 100 employees.

Because health care workers and federal contractors are already subject to their own set of regulations, they are not subject to these new OSHA ETS regulations. Additionally, visitors and vendors who come into an employer’s work site are also not subject to the regulations.

Options for Employers
Employers have the option of choosing between a mandatory vaccine policy or “Vaccine or Test” Policy. This means that employers can either require all employees to receive the vaccine, or they can allow employees to choose whether to receive the vaccine or comply with weekly testing. Employees being tested weekly must provide their employer with a negative test result at least every 7 days before they can be permitted to come on-site. One unanswered question for employers to consider is whether unionized workforces must be bargained with regarding which policy an employer elects to implement. While sample policies are provided by OSHA, they will require customization on the part of employers.

OSHA’s sample policies are available here:

All employees are subject to the choice that the employer makes. For instance, if the employer chooses to implement a mandatory vaccine policy, the employer cannot allow certain employees to be tested weekly. This rule is subject to limited exceptions. Employees who work exclusively remotely or exclusively outdoors (but not in a vehicle) are exempt from either option that the employer chooses. However, if a remote employee comes on site, for example, for a holiday party or team meeting, that employee must comply with the option that the employer has chosen, whether it be mandatory vaccination or testing.

Timeline for Employer Compliance
As noted above, the ETS does not provide much time for employers to become compliant with the policy. The following provides a timeline for employee compliance:

  • Immediately – We recommend deciding now whether to choose a mandatory vaccine policy or a “Vaccine or Test” policy to begin to make arrangements for testing if needed. Employers should also immediately begin to collect the necessary vaccination records of all employees.
  • December 6, 2021 – Paid time provisions, as described below, must be in place, and all employers must have collected vaccination status. All unvaccinated employees must also begin to wear masks at work sites.
  • January 4, 2022 – Employees must be fully vaccinated if they are under a mandatory vaccination policy.

This timeline does not include the two week incubation period, so as long as employees receive the final dose of the vaccine by January 4, 2022, the employer is compliant with the ETS. Employees awaiting the passage of this two week period also need not be tested.

Are There Any Employees Who May Receive Exemptions or Accommodations?
Accommodations or exemptions may be available for employees with medical contraindications, a medical necessity that requires a delay (for example, an employee who recently had COVID), employees with certain disabilities, or employees with a sincerely held religious belief that would prevent the employee from getting the vaccine.

In order to ensure that employers are compliant with the requirement to provide exemptions and/or accommodations, employers should:

  1. Establish a process to review requests for exemptions and accommodations
  2. Use standard forms to obtain information from employees
    a. For medical accommodations, just like with any other request for an accommodation, employers should request documentation from a healthcare provider.
    b. Generally employers should not request information from a third-party in support of religious accommodation requests.
  3. Be consistent to avoid claims of discrimination

Employers should engage with counsel to ensure that their review process and forms are compliant with the relevant laws.

How Much Will This Cost?
Employers, whether they choose the “Vaccine or Test” or mandatory vaccine policy, must pay for up to 4 hours for employees to receive the vaccine. This paid time is in addition to any other COVID time and cannot come out of accrued sick leave. Employees must also be provided a reasonable amount of sick time, which can come from their paid sick leave that is already available. If employees do not have time available, employers must provide additional paid time.

For employers choosing to allow weekly testing, they may be wondering if they have to pay for both the time spent testing and the cost of the tests. Here is a breakdown:

Costs of the tests: The ETS does not require employers to pay for testing. However, under the FLSA, employees cannot be required to pay for business costs for the benefit of the employer if it impacts minimum wage or overtime. We are waiting to see if the Department of Labor issues any guidance as to whether testing would be considered “for the benefit of the employer,” which is right now an open question. Additionally, several states require employers to reimburse employees for necessary business expenses, and some states explicitly prohibit employers from requiring employees to pay for the cost of medical tests in connection with employment. Therefore, employers should review state law and consult with counsel before making a determination as to whether they may require employees to cover the cost of testing.

Costs of time spent testing: While the ETS provides that employers do not need to pay for time spent testing, again, employers should consider other relevant laws before making any decisions. For non-exempt employees, the Fair Labor Standards Act (FLSA) considers “hours worked” to include time which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace. At this point, it is unclear whether the Department of Labor would consider testing for employees who choose not to get vaccinated as hours worked. Therefore, employers should similarly proceed with caution. As above, state laws may also require payment for the time spent, and employers should review the law of the state(s) where their employees work before making any decision.

How Does This Interact with ERISA?
The applicability of ERISA to vaccine programs is not clear yet from any guidance, but likely, it will depend on whether the employer is paying for the testing or vaccine or offering an incentive for the testing or vaccine. If so, the employer may have (likely unwillingly) created a standalone health plan which requires all of the normal documents for benefit plans. At this point, until there is further guidance, the easiest way to comply with ERISA and avoid creating a standalone benefit plan is to piggyback any vaccine testing programs to an employer’s pre-existing Employee Assistance Plan (EAP).

Disclosure of Vaccination Status
One question that often comes up is whether employers can share vaccination status of one employee with another for certain reasons. There are certain instances where disclosure to other non-HR employees may be necessary. For instance, as noted above, the ETS requires that non-vaccinated employees wear masks when at work. Therefore, in places lacking a mask mandate, the only employees required to wear a mask may be employees who are not vaccinated. Thus, employers need to balance the requirement to treat vaccination records as confidential medical information with the obligations under the ETS. We recommend only disclosing to management employees under this “need-to-know” basis.

What Recordkeeping Obligations Do Employers Have?
Finally, employers must understand their obligations to keep accurate records of their compliance with the ETS. To start, all employers must maintain accurate records of vaccination status of each employee. Therefore, as an initial starting point, employers should begin to collect current vaccination status of all employers. If employers are choosing the “Vaccine or Test” option, employers must obtain test results every 7 days before an unvaccinated employee comes on site. The ETS makes clear that a record of each and every test result must be kept. Records can be kept in paper form or electronically as long as it is confidential. Records must be maintained as long as the ETS is in effect, which we estimate will be for at least six months, possibly more.

While the ETS provides some answers, there are still many unknowns at this point and as always, guidance is changing rapidly. Prior to making any policies, consult with counsel to carefully consider the unique issues of your workplace. For more information, check out our prior blog summarizing this ETS, written by Sasha Hodge-Wren.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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