UPDATE – On Saturday, November 6, 2021, the U.S. Circuit Court of Appeals for the Fifth Circuit granted an emergency petition to stay OSHA’s interim rule/Emergency Temporary Standard, discussed below, requiring U.S. employers with 100 or more employees to ensure their employees are vaccinated against the virus that causes COVID-19 or comply with weekly COVID-19 testing requirements. The Fifth Circuit’s order halting the ETS noted “grave” constitutional and statutory concerns posed by the interim rule. Briefing will close Tuesday, November 9. We will update the blog when the appellate court issues its next order.
As we previously reported, on September 9, 2021, President Biden announced a sweeping plan to address and help contain the COVID-19 crisis, one major point of which was directing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to adopt rules requiring employers with more than 100 employees to ensure their workforce was fully vaccinated against the coronavirus or to undergo weekly testing.
On November 4, OSHA issued an Emergency Temporary Standard (ETS, or the “Rule”) designed to protect more than 84 million U.S. workers through expanded coronavirus mitigation strategies, including vaccination. The Rule, including the preamble, is 490 pages long. Although the ETS is effective immediately due to the “grave danger” presented by the virus, OSHA has invited public comments over the next 30 days as to whether the ETS should be adopted as a final standard. Depending on these public comments, OSHA may add to or amend the ETS prior to adopting a final standard. The ETS is anticipated to be in effect for at least six (6) months, or longer if circumstances require. Although the Rule is effective immediately, employers’ compliance dates are staggered: Compliance with most of the requirements of the ETS is required by December 5, 2021, except that COVID-19 testing for employees who are not fully vaccinated is not required until January 4, 2021.
The highlights of the Rule are as follows:
- Coverage: The ETS applies to employers with more than 100 employees. All employees at all U.S. locations are aggregated for this purpose. Therefore, if the total number of U.S. employees is 100 or more, all locations – including those with fewer than 100 employees – must comply with the ETS.
- Required Steps: Under the ETS, covered employers must develop, implement, and enforce (a) a mandatory COVID-19 vaccination policy; or (b) a policy requiring employees to choose either to (i) be vaccinated or (ii) undergo regular COVID-19 testing and wear a face covering at work.
- Mandatory Vaccination Policies: If covered employers elect to adopt a mandatory vaccination policy, they are obligated to obtain proof of vaccination status from vaccinated employees and to maintain records and a roster of each employee’s vaccination status. “Fully vaccinated” for purposes of the ETS means that two weeks have passed since (i) the employee received a one-dose vaccine, or (ii) the employee received the second dose in a two-dose vaccine; employers are not required to collect information regarding booster shots and additional doses.
- Paid Time Off For Vaccination: Covered employers are required to support employee vaccination by providing up to four (4) hours of paid time off, at the employee’s regular rate of pay, for purposes of obtaining each of their primary vaccination dose(s), without offsetting this time off with sick leave, personal time, or vacation leave. In addition, employers must allow employees to use accrued paid sick leave to recover from vaccination side effects, if any, and if the employee does not have any accrued paid sick leave, the employer must provide reasonable paid time off to recover from any side effects of vaccination, which leave may be reasonably capped. This time-off requirement applies even if the employer allows employees to choose to test in lieu of vaccination.
- Proof of Vaccination: Merely showing employers one’s vaccination status is insufficient. The employer must retain either a physical or digital copy of documentation establishing vaccination status. All records, including the vaccination roster, must be treated as employee medical records and maintained as required by the Americans with Disabilities Act’s regulations pertaining to confidential medical information.
- Reasonable Accommodation: Even mandatory vaccination policies must allow for reasonable accommodation for employees for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those with disabilities or religious beliefs, practices, or observances that conflict with the vaccination requirement.
- Weekly Testing In Lieu of Vaccination: If a covered employer adopts a policy that allows for testing as an alternative to mandatory vaccination, then the employer must ensure that employees who report to the workplace at least once per week test weekly and produce negative test results before reporting to the worksite. If employees are away from the workplace for a week or longer, they must produce a negative test result within seven (7) days before returning to work.
- Permissible Testing: The types of acceptable COVID-19 tests are outlined in the ETS and, although they include over-the-counter (OTC) test kits as well as tests administered by health care providers, OTC test results must be validated by someone other than the employee, such as an authorized telehealth provider, or the employer may proctor the test itself.
- Costs of Testing: The ETS in and of itself does not require employers to pay for the cost of testing, but cautions that such obligations may be imposed by collective bargaining agreements, employment agreements, or other applicable laws.
- Positive Test Results: If an employee tests positive for COVID-19 or is diagnosed with COVID-19, the ETS (i) requires employees to notify their employers of this development; and (ii) obligates employers to remove such workers from the workplace, regardless of vaccination status, and not permit them to return until determined safe to do so. Return-to-work criteria are set forth in the ETS.
- Facemasks Required: Covered employers also must ensure that unvaccinated employees wear a face covering (made of at least two layers of a breathable fabric, thus excluding plastic face shields) at all times while indoors at a worksite (except when alone in a fully-enclosed room, while eating/drinking, to comply with security requirements, while wearing a respirator or facemask, or where the face covering poses serious risks or hazards) or when occupying a vehicle with one or more others persons for work purposes. This requirement applies even to those employees who have received a reasonable accommodation from a vaccination requirement.
- Preemption: The ETS expressly preempts state and local requirements that ban or limit employers’ authority to require vaccination, face coverings, and/or testing, but public health standards or employer measures that are stricter than the ETS and designed to mitigate virus transmission are not preempted. For example, employers who are required to comply with the President’s Executive Order 14042 Requiring Coronavirus Disease 2019 Vaccination for Federal Contractors, which is a stricter standard than the ETS, can satisfy their obligation under the ETS by complying with guidelines issued by the Federal Workforce Safety Taskforce. Furthermore, employers that receive Medicare or Medicaid funding are subject to more stringent requirements than the ETS. The Centers for Medicare and Medicaid Services (CMS) has promulgated a separate rule requiring COVID-19 vaccination by January 4, 2022, with no alternatives available for testing and mask use.
- Penalties: Adopting the ETS enables OSHA to issue more meaningful penalties for willful and egregious violations, the goal of which is to deter employers from disregarding their obligation under the General Duty Clause of the Occupational Safety and Health Act to provide a safe workplace. Per the ETS, OSHA is expressly authorized to issue a separate penalty for each instance of noncompliance with an OSHA standard, such as for each employee lacking required protections or each workstation lacking required controls. With maximum penalties of $13,653 per serious violation, and $136,532 per willful or repeated violation, the ETS has real teeth and employers face serious consequences for failing to adhere to its requirements.
We encourage you to work with your Squire Patton Boggs labor and employment counsel on developing workplace policies that take into account employer size, industry, and contractual obligations, as well as to work through the nuances of the reasonable accommodation process, which we expect to be a pressing issue in the weeks and months to come. In the interim, please join us on Monday, November 8, 2021 for a free webinar discussing the ETS, timelines for compliance, and best employer practices. Registration details are available on the event page.