OSHA’s Vax-or-Test ETS: What Employers Need to Know

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The federal Occupational Safety and Health Administration has now issued the Emergency Temporary Standard (ETS) implementing President Biden’s September 9, 2021 COVID-19 Action Plan that requires employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. Although the ETS is effective upon publication in the Federal Register on November 5, 2021, employers will be given until December 5, 2021 to come into compliance with everything but the testing requirement, which has a compliance date of January 4, 2022. The ETS will likely be in effect for six months.

What About Conflicting State/Local Laws/Orders? OSHA is quite clear that the ETS preempts all state or local laws or orders to the contrary.

Which Employers Are Covered by the ETS. The ETS applies to employers with 100 or more employees – but not workplaces covered either by the vaccination Executive Order applicable to government contractors (which we discussed here and here) or by the healthcare employer ETS (which we discussed here). And the way that the ETS is worded, it would appear to apply to federal contractor workplaces that are not covered by the EO or healthcare employer workplaces that are not covered by the healthcare ETS. In addition, please note that the DOL has announced that the vaccination deadline for federal contractor employees has now been extended to January 4, 2022 to conform with the ETS deadlines.

With regard to whether an employer meets the 100-employee threshold, the ETS states as follows:

  • Company-wide, regardless of location. Employees are counted company-wide, not by individual location. This includes remote employees and those working outside.
  • Regardless of hours worked. All employees are counted: full-time, part-time, temporary, and seasonal.
  • As of November 5, 2021 – or when there are 100 employees. The count is made on the effective date of the ETS. If an employer subsequently crosses the 100-employee threshold, they become covered by the ETS on that date. However, if a covered employee drops below 100 employees, they continue to be covered by the ETS while it remains in effect.
  • Not counted. Host companies do not count independent contractors or contractor employees, staffing agency employees, or employees of other employers at the same worksite.

Which Employees Are Covered by the ETS. While generally employees in the workplace are covered (certainly those who come into the workplace at least once every seven days), not all of an employer’s employees are necessarily covered by the ETS or are subject to all the requirements.

  • Prior COVID-19 infection. Those individuals are not considered vaccinated and are still subject to the ETS’ requirements. They should not be tested for 90 days following their positive test result or diagnosis, however. They must comply with testing/face covering requirements.
  • Fully remote employees. Those who work from home or somewhere where they do not interact with others are not covered by the ETS. If they occasionally come into the workplace, however, they must be tested within 7 days prior to entry and provide documentation of a negative result, as well as comply with the face covering requirement.
  • Outdoor employees. Those working exclusively outdoors are not covered by the ETS.

New Vaccination-or-Test Rule. Covered employers must require either vaccination or weekly testing/face coverings for their covered employees.

  • Employers can mandate vaccination, if they like. Although the ETS sets forth a vaccination-or-test requirement, employers may choose to implement a vaccination-only mandate (subject to medical and religious exemptions). They may also mandate vaccinations for certain groups of employees (e.g. those directly interacting with the public or working in close contact with others) and not others.
  • Testing and Face Covering Alternative. If the employer chooses not to impose a vaccination mandate, they must require employees who are not fully-vaccinated to undergo weekly testing and wear face coverings in the workplace.

What Is Fully-Vaccinated? “Fully vaccinated” means two weeks after the second dose of a two-shot regimen or the only dose of a single-shot regimen of an approved vaccine. Booster shots are not required in order to be fully-vaccinated.

What Are the Acceptable Vaccines? The acceptable vaccines are those:

  • Approved or authorized for emergency use by the FDA;
  • Listed for emergency use by the World Health Organization (WHO); or
  • Administered as part of a clinical trial (including of WHO emergency-use vaccines) at a U.S. site, as long as they received the active (not placebo) COVID-19 vaccine candidate, and the vaccine’s efficacy has been independently confirmed (e.g., by a data and safety monitoring board).

“Mix-and-match” vaccinations, meaning any combination of two doses of an FDA- or two doses of a WHO-approved COVID-19 vaccine, are also acceptable.

Proof of Vaccination Status. Employers are required to maintain records of each employee’s vaccinated status and a roster of all employees, showing their vaccination status.

  • Acceptable proof of vaccination. OSHA lists the following as acceptable proof:
    • the record of immunization from a health care provider or pharmacy;
    • a copy of the U.S. COVID-19 Vaccination Record Card;
    • a copy of medical records documenting the vaccination;
    • a copy of immunization records from a public health, state, or tribal immunization information system; or
    • a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). (Note that all this information should also be reflected in the above-listed forms of proof).
  • No false documentation. Although the ETS does not require employers to monitor for or detect fraud, they must notify employees that there are criminal penalties under the OSH Act for knowingly providing false statements or documentation.
  • Copy of the vaccination documentation. The employer must keep a physical or digital copy of the documentation.
  • Lost vaccination card. If an employee has lost their card or other proof of vaccination, they should first contact the vaccination provider to obtain a replacement or utilize the state health department’s immunization information system. (And it is our opinion that an employer can require the employee to go on the system to obtain the verification of immunization).
  • Attestation of vaccination. If they have no other means to obtain proof of vaccination, they may attest to their vaccination status. The circumstances under which this applies should be quite limited – OSHA gives examples of migrant workers, those without access to a computer, and those who cannot remember their provider (because it was at a temporary location, like a church). The signed and dated attestation must include the following:
    • Attest to their vaccination status (fully vaccinated or partially vaccinated);
    • Attest that they have lost or are otherwise unable to produce proof required by the standard;
    • Include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”; and
    • Include the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
  • Employers must maintain a roster of all employees, showing whether they are or are not fully-vaccinated.
  • Confidential medical information. The proof of vaccination and the roster are confidential medical records that must be maintained in a secure file, separate from employee personnel files, and accessible only to those with a need to know.

Mandatory Vaccination Policy. OSHA encourages mandatory vaccination policies. If an employer chooses to implement a policy requiring vaccination of all employees, there are certain requirements.

  • Those who fall into one of three categories are exempt from a vaccination requirement, although they must comply with the testing and face coverings requirements discussed below:
    • Those for whom a vaccine is medically contraindicated,
    • Those for whom medical necessity requires a delay in vaccination, or
    • 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.
  • Policy requirements. According to OSHA, the mandatory vaccination policy must be in writing and should contain the following provisions:
    • Requirement for COVID-19 vaccination and to whom it applies;
    • Applicable exclusions from the vaccination requirement (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs);
    • Information on determining an employee’s vaccination status and how this information will be collected;
    • Paid time and sick leave for vaccination purposes;
    • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
    • Masking and testing requirements for those unable to be vaccinated;
    • How information is to be provided to employees;
    • The policy’s effective date;
    • Deadlines (e.g., for submitting vaccination information, for getting vaccinated); and
    • Procedures for compliance and enforcement, which would include disciplinary action for employees who do not abide by the policy.
  • Non-compliant employees. Employers may take disciplinary action – up to and including discharge – for employees who refuse to comply with a mandatory vaccination requirement.
    • We note that in the context of the guidance on the separate vaccination mandate applicable to federal contractors, the government offered its own protocol as an option for how to address non-compliant employees, which other employers may find useful: a limited period of counseling and education, followed by additional disciplinary measures, thereafter resulting in removal for continued non-compliance.

Testing Requirement. Employees who are not vaccinated – including those with medical or religious exemptions – must undergo weekly testing starting January 4, 2022. The ETS addresses the following issues regarding the testing requirement:

  • Testing Costs. Employers do not have to pay for the cost of the test under the ETS, but other laws may apply, as discussed below. Employers may choose to pay such costs.
  • Testing Time. Sadly, the ETS does not address whether the employer must pay for the time that an employee spends being tested. The DOL has stated that it will be updating its guidance to address this issue. But in the meantime, we need to look to other laws and guidance on this issue.
    • If the testing is being done during the workday, the time is compensable, as the DOL previously stated in guidance that it issued early on in the pandemic.
    • If the testing is done while off-duty, the DOL’s guidance states that it is compensable if “the testing is necessary for [the employees] to perform their jobs safely and effectively.” The DOL gives the example of the grocery store clerk with significant interaction with the public. Given that the ETS does not require employers to pay for the costs of the tests themselves, (and in fact OSHA states it does not believe it is appropriate to impose such costs on employers for employees who choose a less protective measure) we believe that employers likely need not pay for off-duty testing time for employees whose jobs do not require close interaction with those whose vaccination status is unknown.
  • Other federal and state laws may apply. However, other federal or state laws may require payment for the tests or the off-duty testing time. For example, the ADA requires employers to pay for the costs of reasonable accommodations for employees with disabilities, absent an undue hardship, including a disability requiring a vaccine exemption – presumably that would include the costs associated with testing – the test itself and the time to take the test. State laws may also require payment for time spent at the employer’s direction, or at the employer’s workplace (if tests are conducted there).

Acceptable Tests. Any FDA-approved/authorized/cleared viral test is acceptable. The test must be administered in accordance with the instructions. But self-administered and self-read tests are not acceptable, unless they are observed by the employer or a telehealth proctor. This means at-home tests will not be permitted, unless they are done in the presence of an employer-representative or telehealth proctor.

  • Pooled tests. Pooled specimen testing (running a single test on combined specimens, with individual follow up in the case of a positive result) is permitted.
  • Test results. Employers must keep copies of each employee’s test results while the ETS is in effect. The results are confidential medical records that must be retained in a secure file, separate from the employee’s personnel file, and accessible only to those with a need to know. Employees may access their own test results by the end of the next business day following their request.

Removal from the Workplace. Employees are required to notify their employer promptly of a positive test result and must be removed from the workplace.

  • Return to work. Employees testing positive cannot return until they meet the CDC’s criteria for release from isolation, meet certain testing criteria, or are released to return to work by their health care provider.
  • Leave. The ETS does not require an employer to provide paid leave to employees testing positive who are unable to work remotely. Employees may be entitled to paid leave (whether general sick or COVID-specific) under employer policy, or local or state laws.
  • Exposure to COVID-19. Unvaccinated employees who come into close contact with a COVID-positive individual do not need to be removed from the workplace.
  • Contact tracing. The ETS does not require employers to conduct contact tracing, but local and state health department requirements may apply.

Face Coverings. In addition to being tested on a weekly basis, employees who are not fully-vaccinated must also wear face coverings indoors or when in a vehicle with another person for work-related reasons.

  • Acceptable face coverings. These must completely cover and fit snugly over the nose and mouth, consist of at least two layers of tightly-woven but breathable fabric, and not have any slits, valves or other openings. Clear face coverings that otherwise meet these criteria are also permitted where necessary to facilitate communication.
  • Exceptions. Face coverings are not required when those who are not fully-vaccinated are alone in an enclosed room, they are eating or drinking (briefly), the covering must be briefly removed for identification purposes, the face covering creates a hazard, or the employee is wearing a respirator/facemask.
  • No prohibitions. Employers may not preclude employees, customers and visitors from wearing face coverings if they wish to do so.
  • Cost of face coverings. Employers are not required by ETS to cover the cost of required face coverings; however, other federal, state or local laws may do so.

Mandatory Paid Vaccine Leave. Covered employers must provide paid leave to get vaccinated and to recover from the vaccine, regardless of whether they are mandating the vaccine, or implementing a vax-or-test/mask protocol.

  • Paid time for vaccination. The employer must provide reasonable time – up to four hours – during the employee’s work hours to get each dose of the vaccine (but not boosters). Only the actual time spent getting the vaccination is required to be paid. Employers cannot require employees to use existing paid leave for this purpose. But if an employee chooses to be vaccinated during off-duty time, the employer does not have to pay for that time.
  • Paid time for adverse effects. An employer can require an employee to use existing and available sick leave, or if they only provide one type of leave (e.g. PTO), to recover from any adverse effects from vaccination. If employers provide different types of leave, they can only require employees to use sick leave – not the other non-sick forms of leave. And if there is no existing paid leave available, the employer must provide such new leave – up to two days per dose. They cannot require employees to “borrow” against future sick leave.
  • No transportation costs. Employers do not have to reimburse employees for the cost of transportation to get the vaccine.

Information for Employees. Employers must provide employees with certain information about the ETS in a language and at an literacy level that the employee understands. This includes:

  • Information about the requirements of the ETS, and the policies and procedures used to implement the ETS.
  • A copy of the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
  • That the employer cannot discharge, discriminate, or retaliate against an employee for reporting work-related injuries or illness, or exercising rights under the ETS.
  • That OSHA provides for criminal penalties for knowingly supplying false statements or documentation.

The means of communication is flexible, depending on the workplace – such as email, printed fact sheets, or discussion at a team meeting.

Reporting COVID-19 Fatalities and Hospitalizations. Employers must report to OSHA any work-related COVID-19 fatality within 8 hours of learning of it and any in-patient COVID-19 hospitalization within 24 hours of learning of it.

Penalties for Employers. OSHA has the authority to cite employers for failure to comply – for each instance and for each affected employee, where appropriate. OSHA also asserts that the ETS will facilitate its ability to find “egregious” and “willful” violations, subject to heightened penalties. At this time, the penalty for serious and other-than-serious violations is $13,653 per violation, while willful or repeated violations can be up to $136,532 per violation.

Many employers are concerned about the availability of testing, as well as delays in results. OSHA asserts that there should be sufficient testing capability to meet employer needs. But if the employer is unable to comply with the testing requirement because of test supply or lab capacity, OSHA will look at whether the employer has made good faith efforts to comply.

Unionized Employers. The ETS sets a floor, and all employers, including unionized employers, must meet the requirements. Unionized employers will be required to engage in effects bargaining over the implementation of the requirements, including over issues such as: discharge of non-compliant employees; placing non-compliant employees on a leave of absence; length of such leave; whether reinstatement is guaranteed, and if so, to the same job, seniority and/or wage rate.

Next Steps. Although the ETS is effective as of November 5, 2021, OSHA will be accepting public comments on the ETS, which it will consider in developing a possible final standard. You may submit comments during the comment period (30 days for most provisions) starting on November 5, 2021 here. OSHA notes that it may update the ETS as appropriate, if circumstances change.

Other Resources. In conjunction with the ETS, OSHA has also provided significant resources to assist employers with compliance.

Legal Challenges? We expect the ETS to face legal challenges, but unless and until a court issues an injunction prohibiting the ETS from taking effect, employers must comply with its requirements.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-lerts on any significant developments. You may also wish to check our FAQs.

Webinar: Complying with the OSHA’s Vaccination ETS. We will be holding a complimentary webinar on Friday, November 12, 2021 at 1:00 p.m. Eastern to explain further the obligations and requirements of the new ETS, and to provide guidance on compliance. You may register for the webinar here.