OSHA Issues Vax/Test+Mask ETS for Employers with 100 or more Employees

On November 5, 2021 the Occupational Safety and Health Administration (OSHA) formally published an emergency temporary standard (ETS) on COVID-19 applicable to employers with 100 or more employees requiring vaccination or weekly testing, in addition to other requirements such as masking for unvaccinated workers and paid time off for vaccination and recovery. The ETS was effective immediately upon publication in the Federal Register and employers were originally required comply with all requirements other than testing within 30 days after the date of publication and 60 days after publication for testing of unvaccinated workers.  

However, the ETS was immediately challenged in federal court and on November 12, 2021 the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay and ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." OSHA soon after updated its webpage to state: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” In addition, because OSHA was sued in multiple federal courts by multiple parties, a multidistrict lottery was conducted and on November 16, 2021 the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, was selected to hear the case. This litigation is ongoing.

Despite the fact that the ETS has been stayed, for now, employers that may be affected by the standard may want to familiarize themselves with its requirements and make some preparations in the event that the stay is lifted and all or some part of the ETS does go into effect. The following addresses the requirements of the standard as originally published.
 

What does the ETS require?

The ETS requires employer policies on vaccination, determination of vaccination status, support for vaccination with paid time off for vaccination and recovery, weekly testing for employees who are not fully vaccinated, employee notification of positive testing and removal from the workplace, face coverings for unvaccinated workers, publication of information relating to the ETS, reporting of work-related COVID-19 fatalities and hospitalizations, and certain recordkeeping and informational requirements.
 

What are the deadlines for compliance?

The ETS was effective immediately upon publication in the Federal Register but the dates for actual compliance vary based on the requirements.  With the ETS stayed, it is uncertain how these deadlines will be applied if the ETS does go into effect:

30 days after publication (originally December 5th) – all requirements other than testing for employees who have not completed their primary vaccination dose, such as providing paid time off for vaccination and recovery and masking for unvaccinated workers.

60 days after publication (originally January 4th) – testing for all employees who are not fully vaccinated (employees who have completed the entire primary vaccination by this date do not have to be tested, even if they have not yet completed the 2-week waiting period).

Who is covered?  Employers with 100 or more employees are covered under the ETS.  Employees are counted on a company-wide basis and not by each individual facility or establishment. For example, a business with three facilities having 35 employees at each establishment would be considered to have 105 employees and each facility/establishment would be required to comply with the ETS.  

Part-time employees are counted, but true independent contractors are not.  Employees working from home count for purposes of employer coverage but may not be required to comply with all parts of the ETS. Temporary and seasonal workers are counted if employed while the ETS is in effect. On multiemployer worksites – such as construction sites – each individual employer counts their own employees, but all employees of that employer, regardless of where they work are counted.

For employers with fluctuating workforces, coverage is determined initially on the effective date of the ETS (originally 11/5). If the employer has 100 or more employees on that date, they are covered for the entirety of the period in which the ETS is in effect, even if they later drop below 100 employees. If an employer has fewer than 100 employees on the effective date (originally 11/5), they are not covered unless and until they reach 100 employees, at which time they become covered for the entire period during which the ETS is in effect, even if they later drop back below 100 employees.

In traditional franchisor-franchisee relationships each entity’s employees are counted separately for coverage purposes, i.e., a franchisor with 200 employees would be covered but a franchisee with 50 employees would not be covered.

In states that operate state plans, which are required to adopt standards “at least as effective” as the ETS, state and local governments with 100 or more employees would also be covered. There are currently 22 state plans covering both private sector and state and local government workers, and there are six state plans covering only state and local government workers. Information on state plans can be found here.

Who is not covered?  Employers with fewer than 100 employees are not covered. Workplaces covered under the federal contractor requirements are not covered. Settings covered under the healthcare ETS are not covered. In addition, employees who do not report to a workplace where other individuals such as coworkers or customers are present are not covered (but are counted as employees for employer coverage), such as employees working from home. Employees who work exclusively outdoors are also not covered by the ETS. Specific information on these exceptions may be found in OSHA’s FAQs.
 

What is required?

There are nine general requirements for covered employers:
 

• Employer Policy on Vaccinations: Covered employers are required to develop and implement a COVID-19 mandatory vaccination policy; however, employers are exempted from this requirement if they establish a policy allowing any employee not subject to mandatory vaccination to choose to either be vaccinated or provide proof of testing and to wear a face covering.
• Determination of Vaccination Status: Covered employers are required to determine the vaccination status of their employees, to obtain proof of vaccination, to keep records of vaccination status, and maintain a roster of each employee’s vaccination status.  Individual information obtained must be treated as a confidential medical record.
• Paid Time Off: Covered employers must provide reasonable time off for vaccination, including up to four hours of paid time for each dose (which cannot be offset by accrued paid time off), and reasonable amount of paid time off for recovery from any side effects from vaccination (which can be capped at 2 days and may require use of otherwise applicable accrued leave to cover recovery time).
• Testing of Unvaccinated Workers: Covered employers are required to ensure that each worker who is not fully vaccinated is tested at least weekly (if the worker is in the workplace at least once a week) or if away from the workplace for a week or longer within 7 days before returning to the workplace. Employers are not required to pay for testing unless otherwise required by applicable law, but employers may choose to pay for testing costs. 
• Notification of Positive Tests and Removal: Employees are required to notify the employer of any positive test or diagnosis and employers are required to remove any positive employee from the workplace, regardless of vaccination status, until the employee meets applicable return to work criteria. An unvaccinated employee who tests positive is not required to comply with the weekly testing requirement until 90 days after the positive test.
• Face Coverings for Unvaccinated Workers: Employees who are not fully vaccinated must wear a face covering when indoors or in a vehicle with another person, except in limited circumstances (alone in a room, briefly for eating or drinking, for identification purposes, when wearing a respirator, or if creates a greater hazard). Employees who want to wear a mask, even if vaccinated, must be allowed to do so unless it creates a workplace hazard.
• Employer Information to Employees: Covered employers must provide information to employees on the ETS, related employer policies, the CDC’s “Key Things to Know About COVID-19 Vaccines,” information on protection from retaliation, and information about criminal penalties for knowingly providing false documents or statements.
• Reporting Obligations: Covered employers must affirmatively report to OSHA any work-related COVID-19 fatality within 8 hours and any work-related COVID-19 hospitalization within 24 hours of learning of the fatality or hospitalization. This reporting obligation applies regardless of whether the fatality occurred within 30 days of a work-related exposure or the hospitalization occurred within 24 hours of work-related exposure, as is the case under existing reporting obligations.
• Availability of Records: Employees or those with their authorized consent must be provided with their own vaccination and testing records. Employers must also provide to employees or their designated representatives on request the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.  Employers must also provide to OSHA on request copies of their policies and other information and records required to be kept or provided under the ETS. 

The FAQs also provide additional information on all of the above requirements.
 

I am in a state that has its own state plan. Do I have to comply with the ETS?

Yes, if it goes into effect and is adopted by the state plan. States that operate under their own OSHA-approved state plans (22 states that cover both private and public-sector employers, 6 covering only state and local public-sector employees) had 30 days to adopt the ETS or implement an identical or “at least as effective” standard of their own, although adoption has largely been put on hold while the ETS is litigated.  Enforcement dates may vary by state plan state.
 

Does the ETS preempt state and local laws?

OSHA states in its FAQs that the ETS “preempts States, and political subdivisions of 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. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.”

However, the ETS does not preempt laws generally applicable to the public or others not in the employment context. In this regard, the FAQs provide that “the ETS does not preempt generally applicable requirements meant to protect public health by helping to prevent the spread of COVID-19 in public spaces. This includes requirements mandating that everyone wear face coverings in indoor spaces, such as businesses, government buildings, and schools, or that members of the public provide proof of vaccination or recent COVID-19 testing to enter restaurants, bars, or other public spaces.” 

In addition to the ETS, OSHA has published various resources on its ETS webpage, including fact sheets, FAQs, and a webinar for employers to assist with compliance in the event that the standard does go into effect.

If you have questions about the ETS you may contact any member of Ice Miller’s Labor, Employment, and Immigration Practice Group.

This publication is intended to general informational purposes only and does not and is not intended to constitute legal advice.  The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.