OSHA ETS finally issued: large employers must mandate vaccination or weekly testing by January 4

On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) announced its long-awaited Emergency Temporary Standard (ETS) that requires employers with 100 or more employees, among other things, to mandate COVID-19 vaccination or weekly testing for most of their employees. The ETS became effective upon publication in the Federal Register on November 5, 2021. The deadline for employees to receive their final vaccine dose or begin testing is January 4, 2022; other requirements go into effect December 6, 2021. We summarize below key features of the OSHA ETS—including how it interacts with the vaccine mandate for federal government contractors and a new rule promulgated by the Centers for Medicare and Medicaid Services (CMS) requiring vaccines for healthcare workers in Medicare and Medicaid certified facilities—and discuss next steps for employers covered by the ETS.

Which employers are covered by the OSHA ETS?

The OSHA ETS applies to all private-sector employers that have 100 or more employees on a firm or company-wide basis at any point while the ETS is in effect. 

This count includes all employees of the company—including full-time, part-time, and temporary employees, and it includes those employees who work exclusively outdoors or remotely, even though, as discussed below, the ETS does not apply to such employees. Independent contractors and employees employed through staffing agencies are not counted toward the 100-employee threshold.  

Once an employer meets the 100-employee threshold, the ETS continues to apply to it for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the ETS’s November 5 effective date, but then loses four employees within the next month, that employer would continue to be covered by the ETS.

Which employees are covered?

All employees of covered employers, whether full-time, part-time or temporary, are covered by the OSHA ETS except for employees (a) who do not perform work in any location (other than the employee’s residence) where other individuals are present; (b) while working from home; or (c) who work exclusively outdoors.  

Additionally, the OSHA ETS does not apply to employees in workplaces covered by the federal contractor vaccine mandate (issued September 24, 2021), the previously-issued OSHA ETS for healthcare workers (issued June 11, 2021), or the new CMS Rule.

What is the vaccination requirement that applies to covered employees?

Covered employers must adopt either a “hard” vaccine mandate (i.e., employees must be vaccinated with no test-out option unless they are entitled to an exemption under the law) or a “soft” vaccine mandate (i.e., employees may choose to be vaccinated or remain unvaccinated and avail themselves to weekly testing). 

The requirement that employees be vaccinated or subject to weekly testing goes into effect January 4, 2022.  To meet the vaccination deadline, employees must complete their primary vaccination (i.e., receive a single-dose vaccine or the second dose of a two-dose vaccine) by January 4. Employees need not be “fully vaccinated” (defined as two weeks after completing primary vaccination) by the January 4 deadline. The ETS definition of “fully vaccinated” does not include booster shots or additional doses.  

Must all employees who are not fully vaccinated be tested?

Yes.  All employees who are not fully vaccinated are required to be tested weekly starting January 4, except that employees who have completed their primary vaccination by January 4 do not need to be tested, even if they have not completed the two-week waiting period following their last dose.  

What types of test results may employees submit?

An acceptable COVID-19 test is one that is: 1) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug  Administration (FDA) to detect current infection the virus (e.g., a viral test); 2) administered in accordance with the authorized instructions; and 3) not “both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”   

Thus, both rapid antigen tests and PCR tests are acceptable forms of testing, although an at-home test must be either administered or read by the employer or an authorized telehealth proctor.  In other words, employers cannot simply send rapid at-home tests to employees and have the employees send in their results, unless the administration or reading of the result is corroborated by an authorized telehealth proctor or the employer themselves. This requirement may prove cumbersome for employers that adopt soft mandates and have a large number of employees who elect to be tested instead of vaccinated.    

Must employers pay for testing?

The OSHA ETS states that it does not require employers to pay for the cost of testing, but an employer may have to pay for testing if required to do so by another law. The ETS did not identify other laws that will require employers to absorb the cost of testing, so employers need to evaluate whether other state or federal laws require payment for the cost of testing, and whether non-exempt employees must be compensated for the time it takes to obtain testing.  Further guidance on this question is expected. 

How do employers determine which employees are vaccinated, and what proof and recordkeeping is required?

By December 6, 2021*, covered employers are required to have ascertained the vaccination status of all covered employees, except that employers who already verified an employee’s “fully vaccinated” status prior to November 5, 2021 (either by attestation or documentary proof) will not be required to reevaluate vaccination status for such employees so long as the prior verification was documented (that is, not through oral conversation only) and retained.   

In all other cases, employers must retain either a physical or digital copy of the employee’s vaccination proof. Merely having the employee show a COVID-19 vaccination card is insufficient, as the proof must be retained by the employer for the duration of time the ETS is in effect.  

The ETS also requires employers to maintain a roster of employee vaccination status indicating whether each employee is fully vaccinated, partially vaccinated, not fully vaccinated because of an accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status. Although unvaccinated employees will not have proof of vaccination status, the ETS requires the employer to include all employees, regardless of vaccination status, on the roster. 

Acceptable forms of vaccination proof include:

  • the record of immunization from a health care provider or pharmacy; 
  • a copy of the U.S. COVID-19 Vaccination Record Card; 
  • a copy of medical records documenting the vaccination; 
  • a 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 health care professional(s) or clinic site(s) administering the vaccine(s). 

If an employee does not have any of the above forms of proof, despite attempting to obtain it, then employers may accept an employee attestation as acceptable proof, provided that the employee attests to their vaccination status (fully vaccinated or partially vaccinated) and that they have lost or are otherwise unable to produce proof required by the standard.  The attestation also must contain the following language: “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.” An employee who makes such an attestation should also include, to the best of the employee’s recollection, information concerning the type of vaccine the employee received; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). 

*This compliance date was initially announced as December 5 and adjusted to December 6 when the ETS was published in the Federal Register.

Are employers required to provide paid time to employees to receive vaccinations or recover from side effects?

Employers are required to provide employees with up to four hours of paid time, during work hours, to receive each vaccination dose.  This requirement does not apply retroactively to vaccine doses received prior to the ETS’s publication. 

The paid time may not be offset by an employee’s other accrued leave, such as sick leave or vacation leave, and employers cannot require employees to get vaccinations during their personal time. The ETS does not require providing paid time to obtain a vaccine outside work hours if an employee chooses to be vaccinated outside of work hours. 

The employer must also provide paid time to recover from side effects experienced following each dose.  Unlike the paid time for obtaining the vaccine, employers may require employees to use accrued sick leave for recovery time (or PTO if the employer’s policy combines sick leave and vacation into PTO), unless the employee has no accrued sick leave or PTO, in which case the employee is entitled to paid leave and is not required to go into a “negative” balance.  

Employers may cap the amount of paid leave available to employees to recover from vaccine side effects, but the cap must be “reasonable.” OSHA presumes that a cap of two days is reasonable. 

Does an employer need a written vaccination policy?

Yes.  All employers must adopt written vaccination policies that comply with the ETS by December 6, 2021.  If an employer already has a vaccine policy, the employer should confirm that the policy meets the ETS requirements.  

OSHA has created two template policies (one for a “hard” mandate and one for a “soft” mandate), which are located here

Are employers required to submit proof of compliance to OSHA?

No. But if OSHA requests an employer’s policy (or its roster documenting employee vaccination status), then employers are required to furnish this within four business hours.

What other requirements are in the ETS?

The ETS imposes several other obligations on covered employees, including:

  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19. 
  • Immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met. The ETS does not require employers to contact trace or send home workers who have had close contact with those who have tested positive for COVID-19, although state or local laws may require this.  
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. 
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.  This information can be found in OSHA documents located here and here (and are also available in Spanish here and here). 
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. 

What are the consequences for an employee who does not comply?

The ETS does not prevent employers from taking disciplinary action against employees for engaging in activities that are not protected under the ETS, for example: 1) failure to provide acceptable documentation of vaccination status; 2) failure to be vaccinated, under a “hard mandate,” if the employee is not entitled to an accommodation; 3) failure to provide acceptable weekly COVID-19 test results, when required; 4) falsifying vaccination documentation or test results; 5) failure to properly wear required face coverings; or 6) failure to promptly notify the employer of a positive test result. Employers with unionized workforces should consult their collective bargaining agreements before taking disciplinary action.

What are the consequences for an employer that does not comply?

Employers who fail to comply with the OSHA ETS may be subject to OSHA penalties, including heightened penalties for willful or repeated violations of up to $136,532 per violation.  Additionally, although the ETS does not require employers to monitor for or detect fraud by employees, if the employer knowingly accepts fraudulent proof from an employee, the employer may be subject to criminal penalties.

How does the ETS interact with the federal contractor vaccine mandate?

As stated above, workplaces covered by the federal contractor executive order, the prior OSHA ETS for healthcare workers, and the new CMS vaccine mandate, are not covered by the ETS.  

However, where only a portion of the employer’s workforce is subject to one or more of these rules, it is unclear whether and how the ETS may apply to the rest of the workforce. For example, many federal government contractors, including some universities, have decided to apply the federal contractor vaccine mandate to all of their employees because of the administrative difficulty of identifying which workers are and are not covered by the federal contractor mandate. The ETS does not address how, if at all, the ETS applies in such situations.  

How does the ETS work in states that prohibit or restrict mandatory vaccination policies? 

OSHA says that the ETS preempts and invalidates any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.

How will the ETS apply in “State Plan” states?

OSHA says that states that have their own state OSHA plans are required to adopt the ETS (or another standard that is “at least as effective as” the ETS) by December 6, 2021. It is possible that “state plan” states that object to the ETS may attempt to delay adoption of the ETS in their respective states.

What should covered employers do now? 

Legal challenges to the OSHA ETS have already been filed, and more are expected. It is possible that the ETS may be enjoined before any of its requirements goes into effect. Among other reasons, the ETS is premised on OSHA’s finding that COVID-19 presents a “grave danger” to U.S. workplaces, despite the fact that 70 percent of adult Americans are already fully vaccinated, according to the Biden Administration. Employers should watch carefully to see whether a challenge to the ETS is successful.  

Nonetheless, with the ETS deadlines quickly approaching, covered employers should consider getting a plan together to come into compliance in the event the ETS withstands legal challenge. The key compliance steps are as follows:

  • Determine if the employer is covered by the ETS and, if so, which employees are covered. 
  • Decide whether to adopt a “hard” or “soft” mandate.
  • Implement a compliant written policy.
  • Obtain proof of vaccination from all employees and maintain a roster of employee vaccination status.  
  • Implement a process for dealing with exemption requests.
  • Implement a process for testing unvaccinated employees.
  • Distribute the required information to employees (e.g., the required written policy and educational information). 
  • Provide paid time for employees to obtain the vaccine and recover from vaccine side effects.

If you have questions regarding the ETS or require assistance completing the action items above, please contact an author of this post or the Hogan Lovells lawyer with whom you regularly work. 

 

 

Authored by George Ingham, Amy Folsom Kett, Zach Siegel, and Shannon Finnegan*. 

*Shannon Finnegan is a Law Clerk in the New York office. 

Languages English
Topics Employment
Countries United States

 

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