The Occupational Safety and Health Administration (OSHA) has issued is emergency temporary standard (ETS), which was published in The Federal Register on November 5, 2021. (https://federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard) The rule requires businesses with at least 100 employees countrywide to mandate that their employees get vaccinated against COVID-19, or wear a mask and test for COVID-19 at a minimum, on a weekly basis. Employers have known about this mandate for at least two months and will now have to make the decision on what they believe is right for their business. The ETS is expected to cover about two-thirds of private sector employees, or more than 80 million workers, and only around two and a half percent of private sector employers, or 133,000 companies, according to the latest Bureau of Labor Statistics data. Twenty-two states with OSHA-approved plans, are required to accept the standard as written, modify the standard, or propose an equivalent or more protective rule. These states will have 30 days in which to adopt a comparable standard. The OSHA standard can last up to six months after which it must be replaced with a permanent federal regulation.
Details of the ETS include:
- Covered employers must determine the vaccination status of all employees, obtain sufficient proof of vaccination, and maintain records of vaccination and a roster of each employee’s vaccination status. Covered employers need to remember that an employee’s vaccination status is a confidential medical record and should be treated as such with all proper protections.
- All unvaccinated workers must begin wearing masks by December 5, 2021 and provide a negative COVID-19 test on a weekly basis beginning on January 4, 2022.
- Covered employers must pay employees “reasonable time” including up to four hours paid time to include travel time, to receive any required vaccine dose, as well as paid sick leave (in an undesignated amount) to recover from any side effects that prevent them from working due to the vaccine. There is no requirement to provide paid time to employees who test positive for COVID-19.
- Covered employers are not required to pay for or provide the tests unless they are otherwise required to by state, or local laws, or a union’s collective bargaining agreement (CBA) to do so. The ETS does state that self-administered COVID-19 tests may only be used if observed by the employer or a telehealth proctor.
- Covered employers must continue to adhere to COVID-related safety protocols for those employees testing positive, e.g., removal from the workplace, quarantine in accordance with the Centers for Prevention and Disease Control (CDC) guidelines, etc.
The ETS also requires covered employers to establish written policies to implement the mandate or testing requirements. Covered employers must develop, implement, and enforce a mandatory vaccination policy, with an exception for employers to establish, implement, and enforce a policy allowing for employees to elect to undergo weekly testing and wearing a face covering in the workplace. Written policies must also include provisions for exemptions for sincerely held religious beliefs in accordance with Title VII of the Civil Rights Act and covered disabilities under the Americans with Disabilities Act and Its Amendments Act (ADAAA).
OSHA also emphasized that the requirement to record the vaccination status of all employees also applies to remote workers. There are some limited coverage exceptions, specifically for remote and outdoor workers who are not required to comply. Remote and outdoor workers must be used in the 100-employee calculation, but may be exempt from the vaccine or testing requirements.
As a general rule, remote workers do not go into an office on a daily basis, so do not interact indoors with everyone else. According to OSHA, employees who report to workplaces where no other people are present do not face grave danger from occupational exposure to COVID-19 because such exposure requires the presence of other people. Therefore, OSHA exempted those workers who do not come into contact with others for work purposes.
Employees who work exclusively outdoors face a much lower risk of exposure to COVID-19 at work, according to OSHA. Their workplaces don’t typically include any of the characteristics such as being indoors, lack of ventilation, crowding of people, that normally enable the transmission of the virus to occur. OSHA states that the risk of outdoor transmission was less than ten percent of the risk of transmission in indoor settings.
So, what about those workers who work indoors, but also work outdoors? Because most workers who work indoors some of the time, the agency also determined that no more than ten percent of workers who primarily work outdoors also exclusively work outdoors. It estimated that only nine percent of landscaping and groundskeeping workers, eight percent of construction laborers and five percent of highway maintenance workers would be exempt. The exemption for those who work outdoors is extremely narrow and employers should be hesitant to claim the exemption. To be covered for the exemption employees who work exclusively outdoors, the employees must not routinely occupy vehicles with other employees as part of their work duties, according to the ETS frequently asked question 2.B. (https://www.osha.gov/coronavirus/ets2/faqs) In addition, the employee must work outdoors for the duration of every workday except for minimal use of indoor spaces where others may be present, such as a multi-stall bathroom or an administrative office, as long as the time indoors is brief.
The deadline for federal contractors to comply with vaccination requirements under Executive Order 14042 has been pushed back to January 4, 2022, to align with the ETS. However, the Biden Administration has explained that OSHA’s ETS will not be applied to workplaces that are covered by the federal contractor requirement or a new vaccination mandate from the Centers for Medicare & Medicaid Services for healthcare workers at facilities that participate in Medicare and Medicaid programs. What does this mean? Employers will not have to track multiple vaccination requirements for the same employees.
OSHA stated that it will provide sample implementation plans and fact sheets among other materials to help covered employers adopt the new rules. They also intend to do onsite workplace inspections to make sure that covered employers are complying with the rules. Failure for covered employers to implement and/or enforce the requirements of the ETS may result in a potential citation and/or fines of up to $13,653 for each serious violation. Willful violations could result in a fine as high as $136,532.
On November 6, 2021, the 5th U.S. Circuit Court of Appeals in New Orleans issued a stay temporarily blocking the OSHA ETS. The court issued the ruling after a range of lawsuits were filed by state attorneys general and private employers, including locally-owned supermarkets, that oppose the directive. The appeals court granted the emergency stay stopping enforcement of the new policy stating that it raises grave statutory and constitutional issues and was suspended pending further action by the court. The U.S. Department of Labor (DOL) responded quickly to the action and stated that the Occupational Health and Safety Act (OSHA) explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them. OSHA has the authority to issue ETSs only if it can show both of the following factors:
- Employees are exposed to grave danger from the hazard.
- The ETS is necessary to protect employees from that danger.
Due to the fact that it takes weeks to prepare for the ETS, covered employers are encouraged to continue to prepare and move forward with their compliance efforts as the litigation continues. Covered employers should also note that many large businesses who have already mandated that their employees receive the COVID-19 vaccine as a requirement for continued employment, e.g., CVS Health, Facebook, Lyft, United Airlines, and healthcare facilities, to name a few, and who have had their mandates challenged in courts have won their cases as the courts have upheld such policies.
For additional information about the ETS, OSHA has published a Summary and Fact Sheet available at https://www.osha.gov/coronavirus/ets2 which addresses the various components of the ETS. Covered employers may also contact a Consultant at New Focus HR, LLC for additional information regarding OSHAs ETS at www.newfocushr.com .
Written by: Kristen Deutsch, M.B.A., CCP