Occupational Safety and Health Administration (OSHA) – COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS)
On November 4, 2021, the federal Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) that applies to employers with 100 or more employees.
Under this new Vaccination and Testing ETS, companies must ensure that their workers are either fully vaccinated against COVID-19 by January 4, 2022 or that they test negative for the virus at least once a week. All unvaccinated workers must start wearing masks indoors a month earlier, on December 5, 2021. The rule was scheduled to take effect as soon as the ETS is published in the Federal Register.
OSHA takes the position it has authority to issue an ETS, for immediate application without first proceeding through typical notice-and-comment rulemaking, if OSHA “determines” that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and an ETS is “necessary to protect employees from such danger.” See 29 U.S.C. § 655(c)(1).
OSHA determined that unvaccinated workers face “grave danger” from exposure in the workplace based on the severe health consequences associated with exposure to the virus, evidence demonstrating its transmissibility in the workplace, and prevalence of infections in employee populations. As such, this ETS was taken under OSHA’s emergency authority over workplace safety, and OSHA expects its implementation will result in approximately 23 million individuals becoming vaccinated and estimated that it will prevent over 6,500 deaths and 250,000 hospitalizations.
The Vaccination and Testing ETS applies to 84.2 million workers, or two-thirds of the nation’s private-sector workforce. For California and 25 other states with their own OSHA plans, this ETS will affect state and local government employees as well. In short, 15,000 firms in California will have to comply with this rule.
Here are the initial takeaways for employers:
New Requirements
Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy or a policy that requires employees to either get vaccinated or undergo regular testing and wear a face covering at work. The ETS includes employers in unionized workplaces. However, nothing prevents employers from agreeing with employees and their representatives to implement additional measures and the ETS does not displace collectively bargained agreements that exceed its requirements.
Employers and Employees Covered
The ETS applies to employers with a total of at least 100 employees. Employees are counted firm- or corporate-wide (entities with multiple locations will count all employees at all locations). Part-time and temporary or seasonal employees that are directly employed by the employer are counted as well. Independent contractors and employees of a staffing agency are not counted.
- Vaccination and/or testing requirements do not apply to fully remote employees, or employees that do not report to a workplace where other individuals are present or work exclusively outdoors. These employees do, however, count towards the 100 employee threshold.
- Vaccination and/or testing requirements do not apply to healthcare workplaces subject to the June 2021 Healthcare ETS (29 C.F.R. § 1910.502) and workplaces subject to the Executive Order applicable to federal contractors.
Vaccination Standards and Policies
Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s status, and maintain a roster of each employee’s status.
Employers must:
- Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19
- Immediately remove any employee from the workplace who receives a positive COVID-19 test or is diagnosed with COVID-19 regardless of vaccination status
- Keep removed employees out of the workplace until they meet criteria for returning to work
- Provide specific information to employees in a language and at a literacy level the employee understands
- Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and anyone having authorized written consent of that employee
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning of them, and work-related COVID-19 in-patient hospitalizations within 24 hours
COVID-19 Testing and Face Covering Requirements
Employees that are not fully vaccinated must get tested for COVID-19 at least weekly if they are in the workplace at least once a week, or within 7 days if away from the workplace for a week or longer. Employers are not required to pay for the costs associated with testing.
Employees that are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes (except in limited circumstances). Employers must not prevent any employee regardless of their vaccination status, from wearing a face covering unless doing so creates a serious workplace hazard.
Paid Time for Vaccination
Employees must be provided a reasonable amount of time for each employee to obtain their primary vaccination doses. Up to 4 hours per dose must be paid time if the vaccination is received during working hours and cannot be offset by other leaves available to the employee.
Employers must also provide “reasonable time” and paid sick leave to recover from the side effects experienced by any primary vaccination. The ETS does not define “reasonable time.” However, the FAQs state that if an employer provides up to 2 days of paid sick leave per vaccination dose then the employer would generally be in compliance with the ETS.
Preemption of State and Local Laws
The ETS preempts any state law that relates to the same occupational safety or health issue. In particular, OSHA intends to preempt states and political subdivisions of states, that ban or limit an employer’s authority to provide vaccination, face covering, or testing, except under the authority of an OSHA-approved state plan.
Effective Date and Compliance Testing
The ETS was effective November 5, 2021 and remains in effect for 6 months or until OSHA determines that a grave danger from COVID-19 no longer exists. The language of the ETS indicates that employers must comply by December 6, 2021, except that testing of unvaccinated or not fully vaccinated employees will begin by January 4, 2021.
Consequences of Non-Compliance
Employers who ignore the ETS could face OSHA violations and penalties up to $13,653 per violation and additional citations and penalties as determined by OSHA or state OSHA for willful or egregious failures to comply. This penalty could apply to each facility, area within the facility, or each employee within a facility. Further, employers could potentially be exposed to liability for retaliation, whistleblower, negligence and other claims by employees.
The emergency regulation has already attracted four petitions for review from the Fifth, Sixth, Eighth, and Eleventh U.S. Circuit Courts of Appeal. On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals issued a stay temporarily blocking the new rules. The court said it would expedite the case and asked the government to respond by 5 p.m. Monday, November 8, 2021. The court has not specified whether its order would have a nationwide effect or apply only to the states under its jurisdiction. However, a Justice Department spokesperson stated, “[t]he Justice Department will vigorously defend this rule in court,” and the Solicitor of Labor said the Labor Department was “prepared to defend this standard in court.”
We will monitor the court developments regarding the ETS and its implementation and issue a follow-up Legal Alert with all further developments.
Questions
If you have any questions regarding the revised ETS, please contact any of Kronick’s Labor and Employment Practice Group lawyers.
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