UPDATE: Citing potential “grave statutory and constitutional issues” with the ETS released by OSHA on Thursday, the Fifth Circuit Court of Appeals issued a temporary stay blocking the ETS from going into effect. The stay was issued in response to a suit filed by multiple parties and was just one of a host of similar suits filed in Circuit Court of Appeals across the country. The Order issuing the stay provided no analysis and directed the government to respond to the request for permanent injunction by 5:00 p.m. on Monday, November 8 with the challengers’ reply due the following day.
While such challenges were expected, this does further complicate compliance efforts by employers as there may not be a binding determination for weeks and the first compliance date for employers is December 5. For now, employers should still prepare to comply with the ETS as though it will take effect, but refrain from implementing those measures until a final determination is made.
The long-awaited COVID-19 vaccine mandate affecting private employers is here: released on November 4, 2021, set to become effective November 5 and expected to remain in effect for up to six months. This vaccine mandate is perhaps the most significant COVID-related happening in what has been nearly two years of unprecedented change in employment law. At a robust 490 pages, OSHA’s Emergency Temporary Standard (“ETS”) which establishes, implements and enforces the vaccine mandate, will require most covered employers to take significant steps to ensure compliance.
Employers should also keep in mind that the mandate is subject to a 30-day comment period and will likely be amended between now and its vaccination deadline of January 4, 2022. Below are the key compliance issues for employers.
What Does the Mandate Require for Employers?
As known since the announcement of President Biden’s executive order that paved the way for the ETS, the ETS will apply to private employers with 100 or more employees not already covered by another emergency standard or executive order. However, there are several nuances to what was the most well-known detail of the mandate prior to its publication:
- The number of employees is measured by the employer’s total employees across all workplace locations, including remote workers. The requirements apply to those employees working in the office for any amount of time;
- If an employer experiences fluctuating employee numbers, the starting point is the number of employees on November 5, 2021. If the employer has 100 or more employees as of that date, the employer must comply with the ETS for its duration. If the employer is below the threshold the ETS does not apply unless and until the employer passes the 100-employee mark at which point the ETS would apply for its duration;
- For franchises, each franchisee is considered a separate employer, as is the franchisor. For example, if the franchisor has 100 employees, but none of the franchisees meet the threshold, then only the franchisor is a covered employer;
- One of the primary exceptions is employees who work exclusively outdoors, meaning they work outdoors on all days with only de minimis use of indoor spaces, and do not routinely occupy vehicles with other employees as part of work duties;
- Part-time employees are counted towards the threshold number of employees, but independent contractors are not counted;
- Workers supplied by staffing agencies are considered employees of the agency, not the host employer and at multi-employer worksites, each employer will only count their own employees towards the threshold.
- Minors, as well as temporary or seasonal workers, working directly for the employer, are covered so long as they are employed while the EST is in effect.
- Covered employers must develop, implement and enforce a mandatory vaccine policy compelling all employees to be fully vaccinated by January 4, 2022 other than those employees who fall into one of three categories: (a) those for whom a vaccine is medically contraindicated; (b) those for whom medical necessity requires a delay in vaccination; or (c) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
- To ensure mandatory vaccine policies are comprehensive and effective, the policies should address the following: (a) requirements for COVID-19 vaccination; (b) applicable exclusions from the written policy; (c) information on determining an employee’s vaccination status and how this information will be collected; (d) paid time and sick leave for vaccination purposes; (e) notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace; (f) information to be provided to employees; and (g) disciplinary action for employees who do not abide by the policy.
- An employer may feature a tiered policy under which certain positions or roles, e.g., direct contact with the public, must be vaccinated, while other positions may choose between vaccination or weekly testing.
- There is no requirement for an employer to continue employing an employee who refuses to get vaccinated in violation of its policy as a refusal is not generally protected by the OSH Act.
Determination of Vaccination Status
- Employers are required to determine and record the vaccination status of every employee whether they are vaccinated or not. When determining vaccination status, an employer may rely on physical or digital copies of acceptable proof of vaccination status. The ETS enumerates what constitutes acceptable proof of vaccination status.
- For purposes of the ETS, booster shots and additional doses are not included in the definition of fully vaccinated.
- The ETS does not require employers to monitor for or detect fraud by employees with regard to their vaccination status. However, employers may not invite or facilitate fraud, and the ETS provides for criminal penalties for knowingly providing false information regarding vaccination status.
Employer Support for Vaccinations
- Employers must provide paid time off, up to four hours at the employee’s regular rate, for the purposes of vaccination, unless the employee gets vaccinated on a non-working day. Employers are prohibited from requiring employees to use sick, vacation or some other form of leave to get vaccinated.
- Employers may, however, require employees to use accrued sick time or other paid leave to recover from the side effects of the vaccination, but an employer cannot require employees to use advanced sick leave or otherwise go into the negative for paid sick leave to recover from side effects.
- Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.
- Employers may forgo implanting a mandatory vaccine policy and instead opt to develop, implement and enforce a policy requiring employees who are not fully-vaccinated to undergo weekly testing to enter the employer’s premises. Such a policy would only apply to those employees who report to the employer’s workplace. Employees who fail to obtain and provide a COVID test will not be permitted to come to the workplace regardless of any other safety measures.
- For employees who only report to the workplace occasionally, they must be tested within seven days prior to returning to the workplace and provide documentation of that result to their employer.
- The ETS details what types of test and testing are acceptable including pool testing, any test authorized by the FDA (including on an emergent basis) and tests that are self-administered and self-read so long as the test is observed by the employer or authorized telehealth proctor.
- Employers generally do not have to cover the cost associated with employee testing, but other federal laws such as the FLSA may apply requiring employers to pay for employee time spent getting tested.
- Even if an employee has obtained a recognized accommodation to an employer’s vaccine mandate, that employee must still undergo weekly testing in order to enter the workplace.
- Employers electing to utilize a testing policy, must require that all unvaccinated employees wear acceptable face coverings unless an exemption from that requirement exists.
- Employers are required to maintain a roster of every employee’s vaccination status along with acceptable proof of fully vaccinated status as well as every test result for every employee undergoing weekly testing in lieu of becoming fully vaccinated.
- OSHA may request the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at the workplace. If requested, the employer must provide the information within four hours of the request and may be publicly disseminated.
- Employers are also required, when requested by an employee or an employee’s authorized representative, to provide to the requesting employee with the aggregate number of fully vaccinated employees along with the total number of employees. When requested, that information must be produced by the end of the next business day and may be publicly disseminated.
- The records and roster required by the ETS are considered to be employee medical records and must be maintained as such records, including with regard to confidentiality. These records must not be disclosed except as required or authorized by the ETS or other federal law such as the ADA.
- Employers must also retain a record of each test for each employee for the duration of the employer’s testing policy and/or the ETS.
Notification of Positive Test and Removal
- All employees, regardless of vaccination status, must be removed from the workplace if the employee tests positive or is diagnosed with COVID-19. The employee cannot return to the workplace until the employee (a) receives a negative test result; (b) meets the return to work criteria in CDC’s “Isolation Guidance”; or (c) receives a recommendation to return to work from a licensed healthcare provider.
- Paid time off is not required for employees removed from the workplace due to a positive test or diagnosis.
- The ETS does not require the removal of an unvaccinated employee if they have been exposed to a COVID-19 positive person.
The above only scratches the surface of the nuances of the ETS and there are additional requirements including the provision of information to employees which can be in the form of typical workplace notices. The sheer scope and significance of the ETS demands that employers work with experienced employment counsel to ensure their compliance.
What Should Employers Do to Prepare?
Employers should waste no time preparing compliant policies. The first step for employers will be determining whether it is covered. If so, then assessing their workforce to determine vaccination status and choose the appropriate type of policy to be enacted. Employers should then analyze any existing policies to determine the level of revision that will be needed. At the point employers can begin identifying and implementing procedures for compliance with the ETS. At every step there will be questions and unforeseen complications all of which will occur under the specter of non-compliance which can result in costly penalties, potential criminal liability and the threat of litigation. Given the complexity of the ETS and the near-guarantee that the ETS will change multiple times before the compliance dates, working with employment counsel is the best course of action for employers.
HLS’s employment practice group routinely advises employers on complying with all COVID-related regulations while preserving business operations and performance.