The moment all employers have been waiting for: The Occupational Safety and Health Administration (OSHA) has released an emergency temporary standard (ETS) which requires private employers with 100 or more employees to mandate vaccination or require weekly testing and masking for their unvaccinated workers. Legal challenges to the ETS have been made (and we expect more will as well) but, as ETS is currently the law of the land, businesses need to have a plan in place to ensure compliance. Below is a summary of key provisions to the 490-page rule issued on November 4.
All private employers with 100 or more employees are subject to the ETS. The employee threshold is counted using a nationwide headcount rather than the number of employees at a particular worksite. Part-time and temporary employees are also included in the threshold count, although independent contractors are not.
The ETS does not apply to the following: (i) workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; (ii) employers mandated to comply with the Healthcare ETS; (iii) employees who work remotely; and (iv) employees who work exclusively outdoors.
It should be noted that a second rule issued by the Centers for Medicare and Medicaid Services requires some health care workers to be vaccinated by the same deadline (January 4, 2022) but with no option for weekly testing in lieu of vaccination. That rule covers all employees within health care facilities that receive federal funding from Medicare or Medicaid.
Covered employers must either (i) mandate vaccination of all employees, except when an employee is exempt as an accommodation, or (ii) implement a policy that requires unvaccinated employees to submit to weekly testing as well as wear a face covering while indoors or when occupying a vehicle with another person for work purposes.
In order to implement the ETS, employers must determine the vaccination status of each employee. This includes obtaining an acceptable proof of vaccination, maintaining records of each employee’s vaccination status, and maintaining a roster of each employee’s vaccination status.
In addition, employers must provide employees with up to four hours of paid time off to receive the vaccine during normal work hours. Employers must also allow a reasonable amount of paid sick leave to recover from side effects experienced following vaccination, although employees may be required to use paid sick leave benefits already provided. State and/or local emergency paid sick time regulations may also place additional burdens on the employer in this regard.
The ETS requires employers to ensure all unvaccinated workers begin wearing masks by December 5, 2021, and provide a negative COVID-19 test on a weekly basis starting January 4, 2022.
In what appears to be a way to push workers to choose vaccinations over testing, the ETS does not require employers to pay for or provide testing to workers who decline the vaccine. Unfortunately, however, that does not ultimately insulate employers from claims by employees that the employer should pay for testing. Rather, employers must examine state and local law. Indeed, by way of example, the California Labor Code mandates all employers to reimburse employees for necessary business expenses. Moreover, even if an employer does not need to reimburse such expenses under state or local law, if the cost of testing would bring an employee’s pay rate below minimum wage it would violate federal (and some state) wage and hour law.
Of significant import—the time spent getting the COVID-19 test may be considered hours worked, meaning the employee is required to track their time doing so—and employers must compensate them accordingly (which could include overtime pay). Depending on the circumstances, failure to get this right could result in a large (and expensive) wage and hour class action.
Employers must provide information about the ETS to employees in both language and literacy level that they would understand. This information includes: (i) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (ii) the CDC document “Key Things to Know About the COVID-19 Vaccines;” (iii) information about protections against retaliation and discrimination; and (iv) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
The ETS states that its provisions have been intentionally drafted to allow OSHA to separately cite employers for each instance of the employer’s failure to protect employees and for each affected employee. Penalties characterized as serious in nature can be as high as approximately $14,000 per violation. Depending on the nature of the violations, these citations could be classified as “willful” or “egregious,” which would result in a higher penalty amount.
The ETS specifically provides that it preempts states from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally-approved state plan. This means that the ETS preempts and invalidates any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.
After an employer determines whether they will either mandate a vaccination policy or require weekly testing for all unvaccinated workers, it should draft a clear and comprehensive policy regarding the requirements, expectations and practices of the employer. OSHA has sample policies that employers can use on their website. Items to consider for the policy include:
If you have any questions about the ETS mandate or how it impacts your business, please contact: