COVID-19 Update: OSHA Emergency Temporary Standard
November 5, 2021
OSHA’s much anticipated Emergency Temporary Standard (ETS) was published in The Federal Register on November 5, 2021. Because of the continuing grave danger of severe illness and death from COVID-19, and the greater likelihood of serious health outcomes and transmission for unvaccinated employees, OSHA has exercised its emergency powers. OSHA “strongly prefers” mandatory vaccines, but for now has allowed employers to provide a testing and masking alternative for unvaccinated employees. Notably, employers already covered by the federal government contractor vaccination mandate (E.O. 14042) or by the vaccine mandate for health care workers at facilities that participate in Medicare & Medicaid programs (Section 1910.502) are not covered by this ETS. However, this ETS does apply to employees in healthcare settings not covered by this previous vaccine mandate to the same extent it applies to employees in all other workplaces.
Hopefully the Q & A’s below will be helpful in understanding this new standard. And as always, don’t hesitate to contact us with any questions you have.
Do employers have to mandate vaccines?
Yes. Employers with more than 100 employees, determined on a company-wide basis, must mandate vaccines. Under the Standard, employers must implement a policy on vaccination and determine the vaccination status of each employee by December 5, 2022. Employers may, however, also choose to allow unvaccinated employees to undergo testing at least weekly, and to mask in the workplace. The testing/masking option is not required, but may be offered solely at the employer’s discretion. Unvaccinated workers must begin wearing masks by December 5th, and weekly testing must begin the week of January 4th. Employees who have received the full course of their respective vaccinations by January 4th do not have to be tested. And employees may always choose to mask in the workplace, regardless of their vaccination status, unless it would create a serious workplace hazard.
When do these requirements become effective?
Unvaccinated workers must begin wearing masks by December 5th, and if employers allow the testing option, begin weekly testing during the week of January 4th.
How are employees counted for the 100-employee requirement?
The 100-employee requirement is based on a company-wide headcount. All employers with 100 or more employees at all locations company-wide are covered. If related entities handle safety matters as one entity, all of the entities’ employees must be included in the headcount.
When do employers count employees?
The 100-employee count is determined during the time the ETS is effective. So if an employer has 100 or more employees at any time on or after the effective date, while the ETS is in effect, the employer is or becomes covered.
What employees are included?
Full-time, part-time, and temporary employees must be counted, but not temporary staffing agency workers placed temporarily with the employer. Those workers are counted only as employees of the staffing agency for purposes of the ETS, even though the employer and the staffing agency ordinarily share responsibility for these temporary workers under OSHA.
Do these requirements apply to remote workers?
Remote workers, who do not work with any other employees and/or who work from home are exempt from these requirements. Also, employees who work outdoors exclusively are not required to comply with the mandates.
What is acceptable proof of vaccination status?
Employees must provide a copy of their COVID-19 Vaccination Record Card, a record of immunization from their health care provider or pharmacy, a copy of medical records documenting the vaccination, a copy of immunization records from a public health entity, or other official documentation that includes the type of vaccine administered, the date(s) of vaccination and the name of the health care professional(s) or site(s) administering the vaccination. If none of those types of proof of vaccination are available, an employee may provide a signed and dated attestation of vaccination status, certifying that they have lost their documentation and are unable to provide it. Criminal penalties apply for knowingly providing false information. But the ETS does not impose obligations on employers to monitor for or to detect fraud.
Do employers need to keep the documentation? For how long?
Yes, employers must maintain a confidential roster of each employee and their vaccination status. Employers must also maintain individual, confidential records of vaccinations and/or COVID-19 test results. Those records must be kept for the duration of the ETS.
How many shots are required?
Pursuant to the ETS, an employee is fully vaccinated two weeks after completion of the full required dosage course (depending on vaccination brand). Boosters and third shots are not required at this time.
What is the weekly testing alternative?
An employer may, but does not have to allow an alternative to vaccinations, which includes testing no less than every seven days and masking in the workplace or while in a vehicle with another person for work purposes. Masking is not required when an employee is alone in a room with floor-to-ceiling walls and a closed door, for brief periods while the employee is eating or drinking, for identification purposes, when wearing respirators or face masks, when not feasible or when wearing a mask would create a greater hazard. OSHA has said that it may require more frequent testing, but for now, weekly testing is sufficient for compliance.
Is the testing alternative required?
No. It is up to each employer to determine whether they will allow the testing/masking option for employees. An employer may mandate vaccination as the only option, and does not have to provide the testing/masking option.
Which tests are acceptable?
Tests must be approved by the FDA to detect current infection, and may not be both self-administered and self-read unless observed by the employer or its authorized telehealth provider. Antibody tests are not acceptable. While it may be true that previously infected employees have immunity to some extent and for some period of time, previous infection and/or antibody tests do not satisfy the ETS requirements. Because this is an area of continued scientific evaluation, OSHA determined that it is not feasible to permit an exception to vaccination or testing on this basis, at this time.
Who pays for testing?
If an employer allows the testing/masking option, employees must pay for their own tests and their face coverings. Employers may choose to pay for all or some portion of test costs and/or for masks, but that is not required by the ETS. OSHA determined that since vaccination is the preferred and most effective method to keep employees safe, an employee who chooses not to be vaccinated should be responsible for the costs associated with that less effective choice. This may also provide a financial incentive for employees to be fully vaccinated. Some testing locations do offer free testing, A list of those sites providing free testing is available at Community-Based Testing Sites for COVID-19 | HHS.gov
Is paid time off required for vaccination and recovery?
Yes, an employer must provide up to four hours of paid leave time for an employee to receive vaccinations during work time and “reasonable” paid sick leave to recover from vaccination side effects, if any. If an employer chooses to allow the testing/masking option, the ETS does not require paid leave for testing. And if an employee chooses to be vaccinated outside of work hours, their employer is not required to grant paid time to that employee to receive their vaccination.
May employers require employees to use their regular PTO?
Not for receiving a vaccination, as that might provide a disincentive to OSHA’s preferred safety requirement, vaccination. But an employer may require an employee to use accrued sick leave or PTO, if available, to recover from side effects. If the employee does not have available sick leave or PTO, a reasonable amount of paid leave must be provided by the employer. An employer may not require an employee to use accrued vacation leave or to borrow against future leave when recovering from vaccination side effects.
What is a reasonable amount of paid sick leave to recover from side effects?
The ETS does not specify the amount of paid sick leave that employers are required to provide. However, employers may establish a maximum amount of paid sick leave to recover from side effects. OSHA presumes that up to two days of paid sick leave per dose would comply with the ETS.
Are certain employees exempt from the vaccination requirement?
If vaccination is medically contraindicated, as certified by a health care professional, if an employee has a disability that conflicts with the vaccine requirement, also as certified by a health care professional, or if an employee has a sincerely held religious belief, practice, or observance that conflicts with the vaccine requirement, the employee may be given an exemption from the requirement. And while pregnancy is not a disability, the EEOC requires that in this situation, if similarly situated employees have been granted exemptions on the basis of medical conditions or disabilities, those same accommodations should be extended for conditions related to pregnancy, again when supported by documentation from a health care provider. In no case should an accommodation request be ignored, and no employees requesting exemptions should be retaliated against.
What is the process for considering disability, pregnancy and religious exemption requests?
Employers must still, and always, engage in the interactive process with their employees to determine whether such an accommodation is reasonable, whether alternative accommodations are possible, or whether the exemption request poses an undue hardship. This link provides useful information for that process: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov).
Is remote work now considered a “reasonable accommodation” for all employees with ADA-qualifying disabilities?
For employers who allowed or required remote work during the pandemic, it may be more difficult to claim that remote work poses an undue hardship. Employers should consider what worked well during any period of remote work, and what did not. Job descriptions should be edited to reflect the plausibility of remote work. While employees should not be penalized for responsibilities they could not effectively accomplish remotely, the failure to complete certain duties should be noted. Responsibilities requiring employees’ physical presence should be made clear. This documentation will be critical to justify an employer’s future decisions regarding requests for remote work as an accommodation. Remote work policies should also make clear that remote work may not be permanent and that employers can withdraw remote work permission at any time. As always, employers should engage in an interactive review of all disability accommodation requests. The EEOC is already challenging employer requirements that all employees return to in-person work, when certain employees request telework accommodations.
What if an employee tests positive for, or receives a diagnosis of COVID-19?
Employees are required by the ETS to notify their employer immediately of a positive test or COVID-19 diagnosis. Whether the employee is vaccinated or not, they must be removed from the workplace temporarily. The employee may return when it is safe to do so, in accordance with then-current guidance. Upon return to the workplace, an employer may not require the employee to undergo testing for 90 days following their positive test or diagnosis. Employers must report to OSHA any work-related COVID-19 fatality and in-patient hospitalization. A helpful flow chart outlines the decision-making process for temporary removal of employees and their return to work. ETS Compliance Guidance for Employers (osha.gov)
Is a written policy required?
Yes. Employers must develop a written policy to comply with the ETS. And employers must advise employees, “at a literary level the employees understand,” of the requirements of the ETS and employer policies and procedures to implement the ETS. This may be done electronically, in writing, or verbally. Employers may choose any method to inform employees so long as the method is effective in providing the relevant information to each employee. Employers must also provide employees with Key Things to Know About COVID-19 Vaccines (cdc.gov ).
What are potential penalties for noncompliance?
One risk is that OSHA will cite the employer for ignoring safety rules related to the pandemic, when employee deaths or illnesses occur. Employers will be subject to OSHA investigations and penalties per violation as follows: serious violation-$13,653 per violation; and willful violation-$136,532 per violation. Employers will also be at risk of civil claims, with thousands of COVID-19-related cases against employers already filed.
Are vaccine incentives permitted?
Yes, employers may provide incentives for employees to be vaccinated. These could include onsite vaccination, transportation to vaccination sites, additional paid time off, cash, gifts, and increased health care premiums for unvaccinated employees, for example. And, avoiding the cost, time, and inconvenience of weekly testing and masking may also serve as an incentive.
Must employers comply with HIPAA, or require authorization forms to obtain vaccination documentation?
No. Most employers are not subject to HIPAA. And according to the ETS, vaccination records, testing results, and the vaccination roster should all be maintained confidentially as medical records, but do not have to be maintained after termination of the ETS. Employees may request copies of their records, and the number of fully vaccinated employees out of total employees at their workplace.
How long will the ETS last?
The ETS will last for up to six months, or until OSHA determines that the grave danger posed by unvaccinated workers no longer exists, conditions change and/or new information is available. OSHA may revise the ETS as needed. The ETS may also be the basis for a permanent standard, which would supersede the ETS. OSHA may also expand application of the ETS to smaller employers, when and if it determines that those smaller employers can implement the standard without undue disruption. OSHA is seeking comments regarding the issue of expansion.
Is the ETS being challenged in the courts?
The ETS is already facing legal challenges. Employers cannot control the outcomes of these challenges, and the ETS may be upheld. So it seems advisable for employers to focus on compliance, ensuring the safety of their workforce, and avoiding litigation.
Please contact us with questions, and for assistance in determining application of the ETS to your employees, and for drafting any required policies or procedures.