OSHA Emergency Temporary Standards—Mandatory COVID-19 Vaccination and Testing: What Employers Need to Know

UPDATE: On January 13, 2022, a divided US Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) vaccination-or-testing mandate for private employers with 100 or more employees, granting an injunction (stay) of OSHA’s Emergency Temporary Standard and holding that the ETS was beyond the scope of OSHA’s power because OSHA does not have the authority “to regulate public health more broadly.” This ruling effectively spells the end of the OSHA ETS, although the Court did suggest that OSHA would have the authority to issue vaccine rules that are more narrowly targeted to certain at-risk workplaces. In a separate decision issued the same day, the Supreme Court also reinstated a vaccine mandate for workers employed at certain healthcare facilities that receive Medicare and Medicaid federal funding. Importantly, the rulings do not affect state or city vaccine mandates or rules or a private employer’s ability to implement its own vaccine mandate (or vaccine and testing) policies, subject to compliance with state and local laws.

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On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its long-awaited Emergency Temporary Standard (ETS) for private employers with 100 or more employees. A copy of the ETS, which will be published in the Federal Register and effective on November 5, can be found here. The ETS will stay in effect for up to six months, during which time it will be open for public review and comment (and may be revised or updated), and after which it may become a final standard. We anticipate numerous legal challenges to the ETS, and at least one has already been filed as of publication.

In addition to the ETS itself, OSHA has also created a landing page for the ETS (here) released other guidance and resources for employers, including Frequently Asked Questions, a summary of the ETS, a fact sheet on workers’ rights, and sample policies for (i) mandatory vaccination or (ii) vaccination or testing.

Here are the key takeaways for employers:

Federal Contractors

• Federal contractor and subcontractor worksites already subject to and in compliance with Executive Order 14042 and the Safer Federal Workforce Task Force guidance (i.e., mandatory vaccination) are not subject to the ETS.
• However, if a federal contractor with 100+ employees has worksites (or employees) not subject to Executive Order 14042, those worksites/employees would have to comply with the ETS.
• The deadline for vaccination compliance with Executive Order 14042 has been extended until January 4, 2022, consistent with the ETS timing (and subject further to recently updated guidance that contractors should set a reasonable “timeline” to work with and counsel employees who remain unvaccinated).

Health Care Facilities, Including Medicare- or Medicaid-certified Providers

• Will generally be covered under and must comply with the new CMS Omnibus Staff Vaccination Rule and/or the OSHA COVID-19 Healthcare Emergency Temporary Standard (which are broader than the new OSHA ETS).

Preemption of State and Local Laws

• The ETS is specifically intended to preempt all state and local laws that address workplace requirements related to vaccination, face coverings, and testing for COVID-19. In particular, the ETS is intended to preempt any state or local requirement that purports to ban or limit an employer from requiring vaccination, face coverings, or testing.

Timing

• Covered employers must be in compliance with (i) paid time off and (ii) masking rules under the ETS by no later than December 5, 2021.
• Covered employers must be in compliance and have put in place a policy of (i) mandatory vaccination or (ii) vaccination with opt-out/testing by no later than January 4, 2022.

Coverage

• Employers with 100 or more employees, including full-time, part-time, and temporary employees (but not independent contractors).
• Employees who do not report to a workplace where other individuals such as coworkers or customers are present, who work from home, or who work exclusively outdoors, are not generally subject to the ETS.

Mandatory Vaccination Policy vs. Vaccination or Testing Policy

• Employers are strongly encouraged to institute a mandatory vaccination policy for all employees, under which employees must be fully vaccinated and provide proof of vaccination by January 4, 2022.
  
  • A prior positive COVID-19 test/proof of antibodies does not count as fully vaccinated.
  • Employers must also allow employees to request reasonable accommodations based on a disability/medical reason or a sincerely held religious belief, practice or observance. Updated EEOC guidance can be found here.
• Alternatively, employers may implement a vaccination policy with an opt-out/testing option, as well as additional masking requirements.
• Mandatory Vaccination or Vaccination/Testing policies must be in writing and provided to employees. While pre-existing policies could theoretically meet the OSHA ETS, employers should carefully review their policies to ensure compliance or update as appropriate.
• Either in addition to or as part of any formal written policy, employees must be provided with information concerning: (i) the process that will be used to determine vaccination status, (ii) the time and pay/leave to which employees are entitled for vaccinations and side effects, (iii) the procedures that must be followed to provide notice of a positive COVID-19 test or diagnosis, (iv) the procedures for requesting records, (v) information about testing and face coverings (if these options are offered), (vi) COVID-19 vaccine safety information document; (vii) anti-retaliation and worker rights fact sheet; and (viii) criminal penalties fact sheet.

Paid Leave

• Employees are entitled to up to four (4) hours of “duty time” taken during the normal workday (i.e., paid by the employer and treated as working time and not taken out of PTO) per vaccination dose to travel to the vaccination site, receive a vaccination, and return to work, up to maximum of eight (8) hours if receiving two doses. Employees who get the vaccine outside of work hours are not entitled to paid leave for this time (unless the employer voluntarily chooses to do so).
• Employees are also entitled to up to two days of paid sick leave following each vaccination dose if they have side effects. If employees have paid sick leave already provided to them and available in their sick leave bank, they can use this leave. Employees without paid sick leave or who have used up their sick leave allowance must be provided with the time by their employer.

Testing Rules

• Employees who report to the workplace at least once every seven days: (i) must be tested for COVID-19 at least once every seven days, and (ii) must provide documentation of the most recent test to the employer no later than the seventh day following the date on which the employee last provided a test result.
• Employees who do not report to the workplace during a period of seven or more days (i.e., teleworking for two weeks prior to reporting to the workplace) must be tested for COVID-19 within seven days prior to returning to the workplace, and provide documentation of the test result.
• Employees who test positive for COVID-19 may not be subjected to testing for 90 days following the date of the positive test or diagnosis.
• Tests must be cleared, approved or authorized, including in an Emergency Use Authorization, by the FDA. Examples of tests that satisfy the ETS are: (i) tests with specimens processed by a laboratory (including home or on-site collected specimens processed individually or as pooled specimens), (ii) proctored over-the-counter tests, (iii) point of care tests, or (iv) tests where specimen collection and processing is either done or observed by the employer. At-home self-administered and self-read tests are not sufficient, unless they are observed by the employer or an authorized telehealth proctor.

Testing Costs

• Employers are not required to pay or reimburse the costs of testing of unvaccinated employees under the ETS—employers can require that unvaccinated employees pay for the testing, with some caveats. The same is true of masks/face coverings for unvaccinated employees.
• But . . . employers must carefully review and analyze state laws that might require the costs of testing to be paid by an employer. In addition, for employees who request and are approved for a reasonable accommodation based on medical/disability or religious reasons (as opposed to an employee who opts out of vaccination for personal reasons), employers will need to carefully examine and analyze whether it should pay for testing costs as part of any reasonable accommodation under applicable law.
• Employers must carefully examine whether they have any duty to pay for the time spent getting tested by non-exempt employees under the Fair Labor Standards Act, particularly if the testing takes place during regular working hours or in the middle of a shift.

Face Coverings

• Unvaccinated employees must properly wear a face covering that meets the ETS standards when indoors and occupying a vehicle with another person for work purposes, with limited exceptions.
• Employers are not required by the ETS to pay for or reimburse the cost of face coverings for unvaccinated employees, subject to conflicting state law and/or reasonable accommodation under Title VII and the ADA.
• Limited exceptions to face coverings (for unvaccinated employees) are: (i) when an employee is alone in a room with floor to ceiling walls and a closed door, (ii) for a limited time while eating or drinking or for identification purposes, (iii) when wearing a respirator or facemask, or (iv) where the use of face coverings is infeasible or creates a greater hazard.

Proof of Vaccination / Recordkeeping

• Employers must maintain records of vaccination and a “roster” of each employee’s vaccination status, including whether they are fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated for other reasons.
• Unlike Executive Order 14042, employees must provide and employers must maintain proof of vaccination—i.e., physical or digital copies of vaccination records. This includes (i) a physical copy, (ii) a digital photograph, (iii) a scanned image, or (iv) a PDF, that clearly and legibly displays the necessary vaccination information.
• Employers must also maintain records of each test result required to be provided by employees.
• The records and roster are considered to be employee medical records and must be confidentially and securely maintained in accordance with applicable law, including under the ADA.
• Acceptable proof of vaccination includes: (i) record of immunization from a health care provider or pharmacy, (ii) copy of the US COVID-19 Vaccination Record Card, (iii) copy of medical records documenting the vaccination, (iv) copy of immunization records from a public health, state or tribal immunization information system, or (v) copy of other official documentation that contains the type of vaccine administered, date(s) of administration, the name of the health care professional(s) or clinic site(s) administering the vaccines.
• While employers are not required to monitor for or detect fraud, they may not knowingly accept and maintain fraudulent records, and they must notify all employees of the potential criminal penalties for knowingly supplying false statements or documentations.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.