OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

November 4, 2021

The federal Occupational Safety and Health Administration (“OSHA”) took the unprecedented step of issuing an Emergency Temporary Standard (“ETS”) requiring, among other things, COVID-19 vaccinations or regular testing for millions of private sector employees.  This is part of a trilogy of vaccine mandates President Biden announced in recent weeks[1], and it is easily the most far-reaching: by OSHA’s estimates, the ETS will cover approximately 264,000 entities and 84.2 million employees.   

The requirements of the ETS include establishing and implementing a written mandatory COVID-19 vaccination policy or alternative policy requiring testing and face coverings; determining employee vaccination status; supporting employee vaccination by providing paid time for vaccination and time off for recovery; ensuring that employees who are not fully vaccinated are tested for COVID-19 at least once every seven days and wear face coverings; and recordkeeping for employee vaccination status and testing. 

While the ETS stops short of providing an absolute vaccine mandate, OSHA makes clear that it is designed to encourage vaccinations, stating: “[W]hile this ETS offers employers a choice in how to comply, OSHA has presented implementation of a vaccination mandate as the preferred compliance option.”

Below are answers to some of the most common questions we have been receiving concerning the ETS.   

1.  When does the rule take effect and how long do I have to comply?

The rule is effective upon publication in the Federal Register, which is scheduled to occur on November 5.  Employers will have 30 days, or until December 5, 2021, to comply with most of the provisions.  With regard to testing and other requirements for employees who remain unvaccinated, employers will have 60 days, or until January 4, 2022, to comply.

2.  What employers and industries are subject to the ETS?

The ETS covers all private sector employers in all industries if they have 100 or more employees. It does not apply to workplaces subject to the vaccine requirements for federal contractors under EO 14042, or to settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502).

3.  Who is included in the 100-employee threshold?

This ETS applies to employers with a total of 100 or more employees at any time the standard is in effect.  In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not. Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect. For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes.

OSHA states that two or more related entities may be regarded as a single employer for Occupational and Safety Health Act (“OSH Act”) purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted. 

In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.  (The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency.)

The determination as to whether a particular employer is covered by the standard should be made separately from whether individual employees are covered by the standard’s requirements. Thus, for example, if an employer has 98 employees who work remotely and two in-person, it is a covered employer and the two employees are covered employees.

If an employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that employer subsequently hires more workers and reaches the 100-employee threshold for coverage, the standard would apply and would continue to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce.

4.  What does it mean to be “fully vaccinated?”

“Fully vaccinated” means (i) a person’s status two weeks after completing primary vaccination (i.e. not a booster) with a COVID-19 vaccine with, if applicable, at least the minimum recommended interval between doses in accordance with the approval, authorization, or listing that is: (A) approved or authorized for emergency use by the FDA; (B) listed for emergency use by the World Health Organization (WHO); or (C) administered as part of a clinical trial at U.S. site, if the recipient is documented to have a primary vaccination with the “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed (e.g., by a data and safety monitoring board) or if the clinical trial participant from the U.S. sites had received a COVID-19 vaccine that is neither approved nor authorized for use by the FDA but is listed for emergency use by the WHO.

5.  What testing is sufficient for unvaccinated workers to meet the testing requirement?

COVID-19 tests that are cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus satisfy the ETS. FDA-cleared, approved, or authorized molecular diagnostic tests and antigen tests are permitted under the ETS when used as authorized by the FDA and with a Clinical Laboratory Improvement Amendments of 1988 (CLIA) certification when appropriate.  Administration of an antigen test that meets the definition of COVID-19 test under this ETS falls into one of several categories: OTC employee self-tests that are observed by employers or authorized telehealth proctors; point-of-care or OTC tests performed by employers with a CLIA certificate of waiver; and other FDA cleared, approved, or authorized antigen tests that are analyzed in a CLIA certified laboratory setting (FDA, October 14,2021a).

6.  Who must bear the cost of weekly testing and other requirements for employees who remain unvaccinated?

Unlike most OSHA standards, OSHA has determined that for purposes of this ETS, employers are not required to cover any costs associated with COVID-19 testing for employees who choose not to be vaccinated.  Employers also are not required to pay for face coverings for employees who choose not to be vaccinated.

7.  What accommodations may employees be entitled to?

Employers must accommodate employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. 

8.  Does the ETS cover employees who work exclusively from home, outdoors or alone? 

No. The ETS does not apply to:1) workers who do not report to a workplace where other individuals are present (such as a research station where only one person is present at a time) or who telework from home; and 2) workers who perform their work exclusively outdoors. Examples of outdoor work include landscaping, groundskeeping, construction, highway maintenance, lifeguards, ski patrol, coaches and scouts.

An employee who switches back and forth from teleworking to working in a setting where other people are present (e.g., an office), or who mostly works alone but is sometimes around other workers, is covered by this ETS.

9.  Do employers need to pay employees for time spent getting tested, vaccinated or recovering from getting vaccinated?

The ETS requires all covered employers to provide “reasonable time,” including at least four hours of paid time, to receive each primary (i.e. not a booster) vaccination dose, and “reasonable time” and paid sick leave to recover from vaccination side effects. The four hours of paid time that employers must provide for vaccination must be at the employee’s regular rate of pay and cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. While not entirely clear, based on the language in the ETS, it does not appear that employers would be required to include time spent getting vaccinated in calculating overtime pay, though state and local laws or collective bargaining agreements may provide otherwise.

For paid sick leave, employers may require employees to use accrued paid sick leave benefits to offset these costs, if available. If the employee does not have available sick leave, leave must be provided for this purpose.  If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects. An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

The ETS does not specify the amount of paid sick leave that the employer is required to provide. Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be “reasonable.”  The ETS states that a period of two days of paid sick leave is presumptively reasonable.

While not required by the ETS, in some cases, employers may be required to pay testing and/or face covering costs under other federal or state laws or collective bargaining obligations.

10.  If an employee previously missed work to receive a vaccine or to recover from the effects of a vaccine, do I need to pay him or her retroactively?

No.

11.  If an employer does not require vaccinations, what are the requirements for employees who choose not to be vaccinated?

An employee who reports at least once every seven days to a workplace where other individuals such as coworkers or customers are present must be tested for COVID-19 at least once every seven days.  The employee must provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date on which the employee last provided a test result.  If an unvaccinated employee who does not report during a period of seven or more days to a workplace where other individuals such as coworkers or customers are present (e.g., teleworking for two weeks prior to reporting to a workplace with others), the employee must be tested within seven days prior to returning and must provide the test result to the employer upon returning to the workplace.

Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except:

(i) When an employee is alone in a room with floor to ceiling walls and a closed door;

(ii) For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;

(iii) When an employee is wearing a respirator or facemask; and

(iv) Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).

12.  What are the employer’s obligations if an employee tests positive for COVID-19?

The employer must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; and immediately remove such employee from the workplace.  The employee must remain removed until the employee:

(i) Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;

(ii) meets the return to work criteria in CDC’s “Isolation Guidance”; or

(iii) Receives a recommendation to return to work from a licensed healthcare provider.

The ETS does not require employers to provide paid leave to employees who are removed from the workplace due to a positive COVID-19 test or a COVID-19 diagnosis. However, such paid leave may be required by other laws, or by a collective bargaining agreement.

13.  What records must be collected and maintained?

The ETS requires employers to maintain a record of each employee’s vaccination status. Employers must also maintain a record of each COVID-19 test result provided by each employee. These records must be maintained as confidential medical records and must not be disclosed except as required or authorized by this ETS or other federal law.

The standard also requires employers to maintain a roster of each employee’s vaccination status.

To be acceptable as proof of vaccination, documentation should generally include the employee’s name, type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

Copies, including digital copies, of the listed forms of proof are acceptable means of documentation so long as they clearly and legibly display the necessary information. Digital copies can include, for example, a digital photograph, scanned image or PDF of an acceptable form of proof.

Because of the requirement to maintain documentation, it would not be sufficient to obtain only verbal confirmation of a vaccination from an employee. Required records of vaccination status can be maintained physically or electronically, but the employer must ensure they have access to the records at all times

In instances where an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee will be acceptable if it meets certain requirements and contains certain language.

Any employee who does not provide their employer with one of the acceptable forms of proof of vaccination status must be treated as not fully vaccinated for the purpose of the ETS.

14.  How long must employers maintain vaccination and testing records?

The records must be maintained and preserved while the ETS is in effect.

15.  What, if anything, must employers do to verify the authenticity of vaccine or testing records?

While employers may not invite or facilitate fraud, the ETS does not require employers to monitor for or detect fraud. 

However, the OSH Act subjects anyone who “knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter” to criminal penalties. This could apply to both employees and employers.

16.  How does the ETS affect state and local requirements?

The ETS presents the implementation of a mandatory vaccination policy as a preferred compliance option, and explicitly states that it will preempt inconsistent state and local requirements that ban or limit employers’ authority to require vaccination, face covering, or testing. This is true even if the state or local rule only applies to employers with fewer than 100 employees.

Requirements for face coverings in indoor public spaces, including businesses, government buildings, and schools are not preempted and do not conflict with the ETS.

17.  What if I am in a state that is covered by a federally-approved state OSHA plan?

Adoption of this ETS, or an ETS that is at least as effective as the ETS, by state plans must be completed within 30 days of the date of the final federal rule.  The state plan standard must remain in effect for the duration of the federal ETS.

18.  What are the requirements for an employee who recently contracted COVID-19?

OSHA determined that there is insufficient evidence that infection-acquired immunity eliminates the grave danger of exposure to, and reinfection from, COVID-19. Thus, an employee who contracts COVID-19 is still subject to the requirements in the ETS. However, the ETS states that testing requirements are to be temporarily suspended for 90 days following a positive COVID-19 test or diagnosis.

19.  How should I handle new hires?

All new hires should be treated similarly to any employee who has not entered the workplace in the last seven days and will need to be fully vaccinated or provide proof of a negative COVID-19 test within the last seven days prior to entering the workplace for the first time.

20.  How might collective bargaining agreements affect employers’ obligations?

The ETS establishes a floor for protections, and that it does not preclude bargaining for additional protective measures. For example, employers might agree to cover the costs of face coverings or medical removal, or to a requirement that all employees, regardless of vaccination status, wear face coverings while working indoors. Other possible subjects of bargaining may include discipline and discharge procedures for employees who refuse to comply and pay provisions.

21.  May an employer have different requirements for different groups of employees?

Sometimes, if for a legitimate reason. OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce.  An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers. In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework).  Aside from making reasonable accommodations as required by law, employers must ensure that any differences in treatment are not based upon race, age, sex, gender, religion, national origin, sexual orientation or any other protected characteristic. 

22.  What information must employers provide to employees?

Employers must inform each employee, in a language and at a literacy level the employee understands, about the requirements of the ETS, information about COVID-19 vaccines in the document available here; the anti-retaliation provisions of the OSH Act; and the criminal penalties associated with knowingly supplying false statements or documentation.

23.  How long will the rule remain in effect?

Under federal law, an ETS may remain in effect for no more than six months, after which it may be superseded by a permanent standard. OSHA is soliciting comments on the contents of an anticipated final rule.

24.  What information must employers provide to OSHA and when must they provide it?

Employers must report to OSHA:(i) Each work-related COVID-19 fatality within eight hours of the employer learning about the fatality; and (ii) Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.

By the end of the next business day after a request, an employer must make available the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and to anyone having written authorized consent of that employee.  By the end of the next business day after a request by an employee or an employee representative, the employer must make available the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

The employer must provide to the Assistant Secretary for examination and copying: (i) Within 4 business hours of a request, the employer’s written COVID-19 policy as required by the ETS, along with the aggregate number of fully vaccinated employees; and (ii) By the end of the next business day after a request, all other records and other documents required to be maintained by the ETS.

If you have additional questions not addressed here or would like to discuss the requirements further, please contact Brad M. Kushner at 215-751-1949 or brad.kushner@stevenslee.com, or the Stevens & Lee attorney with which you work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

---

[1] The other mandates are the vaccine requirements for federal contractors and subcontractors announced by the Safer Federal Workforce Task Force on September 24, 2021, and the vaccine mandate for certain healthcare workers that the U.S. Centers for Medicare & Medicaid Services (CMS) issued on November 4, 2021, which our Health Care Law blog outlines.