Insight | November 5, 2021
On November 4, 2021, nearly two months after the White House released the "Path Out of the Pandemic: President Biden's COVID-19 Action Plan,” the U.S. Occupational Safety and Health Administration (OSHA) issued the long awaited Emergency Temporary Standard (ETS). The ETS requires workplaces with “100 or more employees” to: (1) develop, implement, and enforce a mandatory COVID-19 vaccination policy; or (2) adopt a policy requiring employees to either get vaccinated or elect to undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination. An employer can take disciplinary action with respect to employees that fail to comply with a mandatory vaccination requirement, including termination of employment. Additionally, ETS requires employers to provide employees with a reasonable amount of time for vaccination (including up to four hours of paid time), and reasonable time and paid sick leave to each employee who experiences side effects following vaccination against COVID-19. Under the ETS, employers are not required to provide employees the option of weekly testing, and can instead enforce a mandatory COVID-19 vaccination policy.
While the ETS became effective today (November 5, 2021), when it was published in the Federal Register, employers have until January 4, 2022, (60 days from publication) to comply with weekly testing for unvaccinated persons under the ETS. The remaining requirements (masking, providing paid time off, providing the required notices, etc.) are effective on December 5, 2021 (30 days from publication). OSHA is providing employers with resources for compliance, available here.
Summary of the ETS
Who is covered?
The ETS applies to employers that have a total of at least 100 employees at any time the ETS is in effect.
How does a company determine if it has 100 or more employees under the ETS?
In determining whether a company has the requisite number of employees to be covered under the ETS, employers must include all employees across all of their U.S. locations, including part-time, temporary, seasonal employees, home workers and minors, regardless of employees’ vaccination status or the location where they perform their work. Importantly, independent contractors do not count toward a company’s 100-employee threshold. Additionally:
- Single Corporate Entity with Multiple Locations: A single corporate entity should count all employees at all locations for purposes of determining whether they meet the 100-employee threshold for coverage under the ETS.
- Multi-Employer Worksites: On multi-employer worksites (such as construction sites), each employer on the worksite is only required to count its own employees (host employers and/or general contractors would not need to count the total number of workers on the jobsite).
- Franchisor-Franchisee Relationships: In franchisor-franchisee relationships where each franchise location is independently owned and operated, OSHA treats franchisors and franchisees as separate entities for coverage purposes under the ETS.
- Two or more related entities: Two or more related entities may be regarded as a single employer for coverage purposes under the ETS if the related entities handle safety matters as a single company. In such instances, all employees in the related entitles must be counted for coverage purposes under the ETS.
- Staffing Agencies: For purposes of the 100-employee threshold, only the staffing agency would count jointly employed employees. The host employer, however, would still be covered by the ETS if it independently has 100 or more employees (not counting the staffing agency employees).
What about employers with fluctuations in the number of employees during the effective period of the ETS?
For employers that have 100 or more employees on the effective date of the ETS, the ETS will apply for as long as it is in effect. Conversely, the ETS would not apply to employers that have fewer than 100 employees on the effective date. However, the ETS will subsequently apply to an employer that meets the 100-employee threshold for coverage at any point during the period the ETS is in effect, and such employers would be required to come into compliance with the ETS’s requirements.
Importantly, once an employer has come within the scope of the ETS, the ETS continues to apply for the remainder of the time it is in effect, regardless of fluctuations in the size of the employer’s workforce (i.e., regardless of whether the employee subsequently drops below the 100-employee threshold).
Which employers are exempt from the ETS?
The ETS sets forth two workplaces that are exempt from coverage:
- Federal Contractors: Workplaces covered under the “Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” are not covered under the ETS.
- Healthcare Services or Healthcare Support Services: Employers that provide “healthcare services or healthcare support services while they are covered by the requirements of 29 CFR 1910.502,” which “requires a multi-layered suite of protections for employees,” are not covered under the ETS. It is important to note, employers with employees covered by section 1910.502 must also determine whether they also have employees not covered by section 1910.502, that would therefore be covered by the ETS. OSHA provides an example of such a situation: “a healthcare employer with more than 100 employees that has non-hospital ambulatory care facilities that are exempt under section 1910.502(a)(2)(iii) (for non-hospital ambulatory care settings where all non-employees are screened prior to entry and those with suspected or confirmed COVID-19 are prohibited from entry) would be required to protect the employees in those ambulatory care facilities under this ETS.”
What are Covered Employers (those with 100 or more employees) required to do?
The ETS requires covered employers to establish and implement a written mandatory vaccination policy or adopt an alternative policy requiring COVID-19 testing and face coverings (when indoors, including in a vehicle with another person) for unvaccinated employees. To meet the definition of “mandatory vaccination policy,” an employer’s policy must require vaccination of all employees, including all new employees, but not including employees that cannot get vaccinated because they have a medical contradiction, a disability, or a sincerely-held religious belief, practice, or observance that conflicts with the vaccination requirement. The ETS sets out the requirements for acceptable face coverings and exceptions to the requirements.
Additionally, OSHA allows employers to adopt an alternative policy that allows employees to choose to either: (1) be fully vaccinated (boosters not included); or (2) be tested weekly for COVID-19 and wear a face covering.
Does the ETS apply to all employees?
The ETS does not apply to employees who do not report to a workplace where other individuals (such as coworkers or customers) are present, employees while they are working from home, or employees who work exclusively outdoors.
What are the applicable deadlines for compliance with ETS provisions?
January 4, 2022, is the deadline by which all employers covered under the ETS are required to either ensure their employees have received the necessary shots to be fully vaccinated, or any employees who have not fully vaccinated begin to produce verified negative tests to their employer on at least a weekly basis. An employee is considered to be “fully vaccinated” (boosters not included) under the ETS two weeks after that individual has received their second dose of a two-dose COVID-19 vaccine (i.e., Pfizer or Moderna), or two weeks after a one-dose vaccine (i.e., Johnson & Johnson).
December 5, 2021, is the deadline by which covered employers must comply with all other provisions, including requirements for reporting and recordkeeping, providing paid time for employees to get vaccinated, and the masking requirements for unvaccinated workers found in the ETS.
What is considered acceptable proof of vaccination status under the ETS?
Under the ETS, the following are considered acceptable proof of vaccination status:
- the record of immunization from a health care provider or pharmacy;
- a copy of the 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).
Additionally, in instances where an employee is unable to produce acceptable proof of vaccination, an attestation of full vaccination status may be acceptable if the employee signs and dates a statement: (a) attesting to their vaccination status; (b) stipulating they have lost or are otherwise unable to provide proof; and (c) acknowledging that providing false information regarding vaccination status may subject the employee to criminal penalties.
Employers that have previously collected attestations prior to the effective date of the ETS do not need to re-verify or collect the attestations again.
Do employers have to pay employees for leave in connection with obtaining the vaccine?
The ETS requires covered employers to provide employees with up to four hours of paid time to receive each primary dose (not booster doses) of the vaccine (not booster doses). The ETS also requires covered employers provide reasonable paid time for sick leave to recover from side effects experienced that keep them from working. The paid leave portions of the ETS are required to be included in policy. While paid leave may be available to an employee under and employer policy, state or local law, the ETS does not require paid leave be provided to an employee who tests positive, is removed from the workplace until the ETS requirements for return to work are met, if that employee is unable to work remotely.
Leave under ETS to receive a primary vaccination dose, so long as it is reasonable (i.e., regardless of whether it takes longer than the paid four hours), would be considered unpaid but job protected. An employer cannot terminate an employee if they use a “reasonable amount of time” to receive their primary vaccination doses, and the employee may use other leave time they have available (i.e., sick leave or vacation time) to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.
However, under the ETS, covered employers are not required to reimburse employees for transportation costs (i.e., gas money, train/bus fare, etc.) incurred by the employee in connection with receiving their vaccination (regardless of whether the vaccination shot is a primary shot or a booster shot). This including the cost of travel to an off-site vaccination location (i.e., a pharmacy or hospital), or travel from an alternate work location (i.e., telework) to the workplace to receive a vaccination dose.
How does the testing program work?
The ETS requires employers to ensure employees who are not fully vaccinated, and who report to the workplace (where other individuals, such as coworkers or customers are present) at least once every seven days are:
- tested for COVID-19 at least once every seven days; and
- provide documentation of the most recent COVID-19 test result to the employer every seven days.
Employers are also required to ensure employees who are not fully vaccinated and do not report during a period of seven or more days to a workplace where other individuals are present are: (1) tested for COVID-19 within seven days prior to returning to the workplace; and (2) provide documentation of that test result upon return to the workplace.
The ETS requires employees to remove employees who fail to provide documentation of a COVID-19 test result, and keep them removed from the workplace until the employee provides a test result.
What sort of tests are considered acceptable?
Acceptable COVID-19 tests are those that have been cleared, approved, or authorized by the FDA to detect current infection with the SARS-CoV-2 virus (i.e., a viral test); are administered in accordance with authorized instructions; and are not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.
Are employers required to pay for the cost of the tests?
Under the ETS, employers are not required to pay for the cost of the test. Payment for testing, however, may be required by other laws or collective bargaining agreements. The ETS is silent on whether an employer must pay an employee for the time spent being tested.
What if an employee tests positive for COVID-19?
The ETS requires employees to promptly notify the employer of a positive test result or diagnosis for COVID-19, and requires employers immediately remove such employees from the workplace. In order to return to work, that employee must either: (i) receive a negative result on a COVID-19 nucleic acid amplification test (NAAT), if the employee chooses to seek a NAAT test for confirmatory testing; (ii) meet the return to work criteria in the Center for Disease Control’s “Isolation Guidance”; or (iii) receive a recommendation to return to work from a licensed health care provider.
Additionally, when an employee has received a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed health care provider, the ETS prohibits the employer from requiring the employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.
Do employers have to report COVID-19 cases?
Covered 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 it.
How long should employers maintain vaccination records?
Employers are required to maintain a record and a roster of each employee’s vaccination status, subject to applicable legal requirements for confidentiality of medical information. OSHA requires these records be maintained while the ETS is in effect.
The ETS also requires employers make available certain individual employees’ COVID-19 vaccine documentation and test results (to the employee or others with authorized consent from the employee), data regarding vaccination rates of the entire workforce (to an employee or an employee representative), the employer’s written policy required by ETS (to OSHA), and “all other records and other documents” required to be maintained by the ETS.
Questions about the ETS as it relates to your workplace?
Management and human resources personnel with questions regarding OSHA’s ETS, vaccination, face covering, or testing for COVID-19, and how the ETS affects their workplace, are encouraged to contact a member GrayRobinson’s Labor and Employment Team.