Breakdown of OSHA's Emergency Temporary Standard Mandating Vaccines for Employers with 100+ Employees
Below is a summary of the OSHA Emergency Temporary Standard (“ETS”) published in the Federal Register on November 5, 2021. The ETS requires employers with 100 or more employees to adopt either a mandatory COVID-19 vaccination policy for their entire workforce or a policy requiring employees to either show proof of vaccination or participate in once-weekly COVID-19 testing and wearing a face covering if remaining unvaccinated. The policy that employers adopt must be established within 30 days (i.e., by December 5).
Affected Employers
Employers affected by the ETS include those who have 100 or more employees company-wide as of the effective date of November 5, 2021. Employees include all workers, whether part or full time, across all locations in the United States, regardless of where or what day they report to work. Independent contractors are not included in a company’s employee count. If an employer’s workforce fluctuates over or under 100 employees while the ETS is in effect, the ETS will still apply.
Time for Compliance
All covered employees must either be fully vaccinated or commence weekly testing by January 4, 2022. If an employee completes the entire primary vaccination series by January 4, that employee does not have to begin weekly testing, even if the employee has not yet completed the two-week waiting period that is required to meet the definition of fully vaccinated.
(1) Mandatory Vaccination Policy
The first policy an employer can choose to implement under the ETS is to mandate vaccination for all employees. Employers do have to make accommodations for employees:
1. For whom the vaccine is “medically contraindicated” (this is not defined by OSHA but appears to mean that the employee has a medical reason not receive the vaccination);
2. If the CDC recommends a person in the employee’s condition should defer vaccination (i.e., individuals who currently have COVID-19); or
3. Who are legally entitled to reasonable accommodations under federal civil rights law including disability and sincerely held religious beliefs and practices.
(2) Alternative Policy
Alternatively, the ETS allows employers to adopt a policy that gives employees the choice between showing proof of vaccination or participating in once-weekly testing. Employees that choose to undergo regular COVID-19 testing must also wear face coverings when in the workplace.
Paid Time Off for Vaccination and Side Effects
Under the ETS, employers are required to provide specific support for employees seeking vaccination, regardless of whether they implement a mandatory vaccine policy or the alternative policy. Employers are required to allow employees reasonable time—up to 4 hours—during working hours to receive each primary dose of an approved COVID-19 vaccination. Paid leave must be included in the ETS policy.
Employers must also allow reasonable time and paid sick leave for employees to recover from side effects after each dose of the vaccine. The amount of paid sick leave is determined by the employer, but it must be “reasonable.” The side effects that would justify paid sick leave are those that would reasonably hinder or preclude an employee from carrying out their normal job functions.
Paid sick leave for side effects may run concurrently with existing sick time, or time otherwise available to cover absences due to illness. However, employers may not require employees use vacation time to cover paid sick leave for side effects.
COVID-19 Testing
Unvaccinated employees in non-healthcare workplaces must undergo COVID-19 testing every 7 days regardless of the employee’s work schedule. In addition to the regular testing, the employee must provide the employer documentation of each test result to the no later than the 7th day following the last test results provided to the employer. If an employee fails to test or provide the test results in that timeframe the employee must be removed from the workplace until test results are provided.
Employees who work 100% remotely do not need to test every 7 days. For employees that have been working remotely for a period longer than 7 days, those employees must test and provide results within 7 days prior to returning in-person to the work place.
Unvaccinated new hires need to test within 7 days before starting work and must provide the test results no later than arrival on the first day of work.
At-home or over-the-counter COVID-19 tests generally not sufficient.
Employers are not responsible for the costs of employee COVID-19 testing, but employers are not prohibited from paying for testing.
Employee Notification of Positive COVID Test/Diagnosis and Removal from Workplace
If an employee, regardless of vaccination status, either has a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare professional, then the employee is required to “promptly” notify their employer.
What is considered prompt depends on where the employee is when receiving the results or diagnosis. If the employee is not at the workplace, then the employee must notify the employer as soon as practicable before that employee is scheduled to start their next shift. If the employee is at work, then they must notify the employer as soon as practicable, but in a safe manner that will not expose others.
Once an employer or its agent is notified, the employer is required to immediately remove the positive employee until the return to work criteria is achieved.
Required Face Coverings
In addition to the regular COVID-19 testing, unvaccinated employees are required to wear face coverings while indoors for work related purposes, including occupying a vehicle with another employee for work.
Under the ETS, face shields on their own are not acceptable face coverings, but can be worn in conjunction with other coverings and masks.
Record Keeping and Reporting Requirements
Employers must preserve acceptable proof of vaccination (partial or full) and, if applicable, proof of testing for each employee while the ETS is in effect. Documentation of proof of vaccination and testing should be confidential and maintained separately from employees’ personnel files.
Pre-Existing Vaccination Policies
If an employer covered by this ETS had a policy in place regarding vaccinated and unvaccinated employees prior to November 5, 2021, then that policy may remain in place if it satisfies the ETS requirements. If it does not fully satisfy those requirements, the employer must evaluate the policy and bring it within compliance by December 5. Any modifications to a pre-existing policy must be put in writing and provided to all employees.
Interaction with State Laws/Preemption
The Federal Government’s ETS addresses the issues of vaccination, wearing of face coverings, and COVID-19 testing in the workplace. OSHA intends for the ETS to preempt and invalidate any State or local requirements than ban or limit an employer’s authority to require vaccination, face coverings, or testing.
Whether Governor Abbott’s executive order prohibiting Texas employers from requiring vaccinations of employees who object on a religious basis, for medical reasons, or for “any reason of personal conscience” is preempted by the ETS is undetermined. Fundamentally, the Supremacy Clause of the United States Constitution prohibits states from passing laws at odds with federal law and regulation, which has resulted in the development of several “preemption” doctrines. Governor Abbott’s Executive Order seems to interfere with OSHA’s exercise of authority governing workplace safety. However, that will remain uncertain until legal challenges to the ETS work their way through the Texas court system.