OSHA Releases Landmark COVID-19 Vaccination and Testing Mandate

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  The ETS will be officially published on November 5, 2021 in the Federal Register.  Importantly, the ETS mandates that employers under its jurisdiction with 100 or more employees require its employees to either be vaccinated or show a negative COVID-19 test result on a weekly basis.  On September 9, 2021, President Biden announced that OSHA would issue this vaccine mandate.

OSHA’s ETS immediately impacts some 80 million employees.  Twenty-two states have their own OSHA “state plans” covering an additional 50 million employees and these states must adopt the new federal ETS within the next 30 days, thereby bringing the total number of impacted American workers to potentially 130 million.  OSHA expects that the ETS will result in approximately 23 million individuals becoming vaccinated.

By any measure, the new ETS is the most widespread and controversial mandate the agency has ever issued.  It will be subject to swift legal challenges seeking an injunction to prevent its enforcement.  The basis for those challenges is discussed later in this article.  First, however, an examination of the ETS’s basic provisions is in order.

 

Which Employers Are Covered by the ETS?

The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare.  Within these industries, all employers that have a total of at least 100 employees (full- and part-time, and temporary) firm- or corporate-wide, at any time the ETS is in effect, are covered.  In an FAQ, OSHA states that:

“for a single corporate entity with multiple locations, all employees at all locations are counted.  For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.”

OSHA notes that the determination of whether an employer falls within the scope of the ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021).  If the employer has 100 or more employees on the effective date, then the ETS applies to the employer for the duration of the standard.  If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date; however, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements.  Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce.

 

Which Employers/Workers Are Not Covered by the ETS?

Notably, the ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (i.e., covered federal contractors and subcontractors) or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of OSHA’s COVID-19 Healthcare ETS.

Likewise, the ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, to employees while they are working from home, or to employees who work exclusively outdoors.

 

When Does the ETS Become Effective?

The ETS will take effect immediately when it is published in the Federal Register on November 5, 2021.  Employers must ensure compliance with the ETS, however, by the following dates:

• 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s); and
• 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination.

 

What Are the Key Requirements of the ETS?

OSHA’s ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements.  The key requirements of the ETS are:

1. Employer Policy on Vaccination. Employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.

In an FAQ, OSHA notes that the employer’s vaccination policy must require vaccination of all employees, other than those employees who fall into one of three categories:

• • 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.

OSHA also recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce.  An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers.  In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework).

2. Determination of employee vaccination status. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
3. Employer support for employee vaccination. The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.

The maximum of four hours of paid time that employers must provide for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose.  Additionally, if an employer does not specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects.  If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.  An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.  If an employee has no available leave, then OSHA presumes that providing up to two days of paid sick leave per primary vaccination dose for side effects would comply with the ETS.

4. COVID-19 testing for employees who are not fully vaccinated. Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).  The ETS does not require employers to pay for any costs associated with testing.  However, OSHA notes that employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.

Examples of tests that satisfy the ETS include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.  Antibody tests do not meet the definition of COVID-19 test for the purposes of the ETS, but antigen tests may meet the definition of COVID-19 test.  To be a valid COVID-19 test under the ETS, an antigen test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

OSHA stated in an FAQ that it has determined there are sufficient COVID-19 tests available and adequate laboratory capacity to meet the anticipated increased testing demand related to compliance with the ETS testing requirements.  However, in the event that an individual employer is unable to comply with paragraph (g) of the ETS due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program, and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard.

5. Employee notification to employer of a positive COVID-19 test and removal. The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; and (3) keep removed employees out of the workplace until they meet criteria for returning to work.  The ETS does not require employers to provide paid time off to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19.

The ETS does not require the removal of an unvaccinated employee if they have been exposed to a COVID-19 positive person.  All unvaccinated workers must wear face coverings and submit to weekly COVID-19 testing, but employers are only required to remove employees if they have tested positive for or been diagnosed with COVID-19.

The ETS does not have a provision requiring notification alerts or contact tracing after an employee tests positive for COVID-19.

6. Face coverings. Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.  Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (g., interfering with the safe operation of equipment).
7. Information provided to employees. The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand:  (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
8. Reporting COVID-19 fatalities and hospitalizations to OSHA. As currently required, the ETS requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
9. Availability of records. The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee.  Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

 

Preemption of State and Local Laws.

OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19.  Thus, the standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues.  In particular, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

 

How Will the New ETS Be Enforced?

Like other standards, OSHA will enforce the ETS by conducting inspections based on priority such as an imminent danger situation, fatality, or a worker complaint.  Those inspections may result in the issuance of OSHA citations and penalties.  The maximum penalty for “Other Than Serious” and “Serious” category violations is $13,653 per violation, while the maximum for “Willful” and “Repeated” category violations is $136,532 per violation.

 

Can OSHA Legally Do This?

If the question is whether OSHA can issue an ETS, then the answer is “yes.”  OSHA is authorized by the Occupational Safety and Health Act of 1970 (“OSH Act”), passed by Congress and signed into law by President Nixon, to promulgate standards on an emergency basis.

Although rare, OSHA has issued emergency temporary standards ten times in the past.  Of those ten times, the courts either fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.  Five of the ETSs issued by OSHA have not been challenged in court, including OSHA’s most recent Healthcare COVID-19 ETS issued on June 21, 2021.

To promulgate an ETS, Section 6(c) of the OSH Act requires OSHA to establish “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that an “emergency standard is necessary to protect employees from such danger.”

Therefore, the better question is whether OSHA acted properly within the statutory framework that allows it to issue an ETS?  Can OSHA establish that employees are exposed to “grave danger” considering the decline in the number of new COVID-19 cases and improved therapeutics for those who contract the disease?  Perhaps.  But even if employees are exposed to grave danger, does the ETS “protect” employees from such danger or does it fail in this regard because it provides a testing option?  And what about those individuals working for an employer with fewer than 100 employees – how does the ETS protect them?  OSHA stated that it

is proceeding in a stepwise fashion in addressing the emergency this rule covers.  OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption. 

While that may or may not be true, the fact remains that the ETS does nothing to protect employees working for “smaller” employers.  These are difficult issues that will no doubt be raised in court by opponents (including many states) of the ETS.

We will follow closely and report on the legal challenges that will undoubtedly be filed.  Stay tuned!