Update – On November 6, 2021 the Fifth Circuit Court of Appeals issued a temporary stay of the ETS.
On November 4, 2021, OSHA issued an unpublished version of its long-awaited Emergency Temporary Standard (ETS) as to COVID-19 vaccination or testing requirements covering most private employers with 100 or more employees. The ETS is scheduled to be published and take effect on November 5, 2021. As summarized below, the ETS requires covered employers to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing. It should be noted that these are “minimum” requirements, such that employers are not prohibited from establishing more stringent policies, and do not supplant the requirements of a collective bargaining agreement.
Employers will have 30 days, or until December 5, 2021, to comply with all non-testing requirements of the ETS, and 60 days, or until January 4, 2022, to comply with testing requirements for employees who have not received all doses required for primary vaccination. Under the Occupational Safety and Health Act (OSH Act), an ETS serves as a proposal for a permanent standard, and the OSH Act calls for the permanent standard to be finalized within six months after publication of the ETS (29 U.S.C. 655(c)(3)).
For purposes of the ETS, a covered employer is one with 100 or more employees “at any time” during the effective period of the ETS. This means that employers who meet this minimum threshold as of the effective date of the ETS are covered throughout the effective time of the ETS, even if the employer later falls under the minimum employee threshold. For any employer that falls short of 100 employees as of the effective date but reaches the threshold at any point that the ETS is in effect, the employer will become subject to the ETS requirements as of the date they meet the threshold and remain covered for the remaining duration of the ETS, even if the employer later reduces staff such that it falls under the threshold. To calculate the number of employees, all part-time and full-time employees must be accounted for, regardless of where they work (including those that work at home). However, independent contractors are not included in the calculation. Also, employees supplied to a customer site by staffing companies only count toward the staffing company’s employee total; they do not count toward the customer company’s total. Similarly, as to franchisee-franchisor relationships, their respective employees count only toward their own calculation, not the other party’s employee count (i.e., a franchisee’s employees count only toward the franchisee’s calculation, and not the franchisor’s count). The ETS excludes: (1) Employers that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and (2) certain settings where any employee provides healthcare services or healthcare support services.
The ETS specifies that the requirements apply only to employees who visit an employer’s indoor locations where other people are present. Employees who work exclusively at home, outdoors, or at a site where the employee is the only person present are not required to comply with the employer’s requirements. However, should such an employee later be required to, or seek to, visit one of the employer’s indoor facilities, the employee must satisfy the vaccination or testing requirements.
Reasonable accommodations/Exceptions to policy
The ETS requires employers to provide reasonable accommodations and exceptions for employees (i) for whom the vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
As to the vaccination requirements, the employer is required to provide an employee with time to obtain and recover from a vaccination. Specifically, the employer must provide up to four hours of paid time, inclusive of travel time, at the employee’s regular pay rate, to obtain a vaccine. The employer must also provide reasonable paid time off to recover from any side effects of each dose of a vaccine.
Proof of vaccination and record keeping requirements
The employer must obtain valid records for all employees’ vaccinations by obtaining one of the following: (i) a record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) a copy of medical records documenting vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or (v) a copy of any other official documentation that contains the type of vaccine, date of vaccine, and name of the health care professional or clinic site administering the vaccine. If an employee is unable to produce acceptable proof of vaccination, they may provide a signed, dated employee statement that (A) attests to the vaccination status (full or partial); (B) attests that the employee has lost or is otherwise unable to produce proof of vaccination; and (C) includes 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.”
The ETS specifically requires employers to obtain and maintain these records, as well as a “roster” of all employees’ vaccination status. These records and roster are considered employee medical records and must be kept confidential while the ETS is in effect, but the records are not subject to the lengthy retention requirements under 29 CFR 1910.1020 of employment plus 30 years.
For employers that allow a testing option, the employer must ensure that unvaccinated employees who report to work at least once every seven days are (A) tested for COVID-19 at least once every seven days, and (B) provide documentation of the most recent COVID-19 test result no later than the seventh day following the date on which the employee last provided a test result. In addition, any employee who does not report to work with the covered frequency must be tested for COVID-19 within seven days prior to returning to the workplace and must provide documentation of that test result to the employer upon return to the workplace. Employers are not required to pay the cost of testing for employees who choose to test rather than become vaccinated, unless required to do so by another agreement (e.g., collective bargaining agreement) or law.
Face covering requirements
Employees who are not fully vaccinated are required to wear face coverings while in the workplace that meet the standards provided in the ETS, unless doing so would place that employee at greater risk. There are circumstances when employees subject to this requirement may temporarily remove their face covering (e.g., when eating or in an enclosed office space alone). Also, the ETS requires that employers allow any employee who wishes to wear a face covering to do so (i.e., vaccinated employees may not be prohibited from wearing a face covering). Finally, should an employee wish, the employee may wear a respirator rather than a face covering.
Required notice to employees
Employers are required to provide employees with information detailing the requirements of the ETS, as well as any employer policies or procedures established to comply with this section. This information must be provided in a language and at a literacy level the employee can understand. In addition, the employer must provide employees with information about COVID-19 vaccine efficacy by providing the document “Key Things to Know About COVID-19 Vaccines.” Employers are also required to inform employees about the requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits employers from discharging or discriminating against employees for reporting a work-related injury or illness, and section 11(C) of the OSH Act, which prohibits employers from discriminating against an employee for exercising rights under the OSH Act, or retaliating against employees for filing an occupational safety or health complaint.
The above is just a summary of the key provisions of the ETS, which is lengthy and contains companion documents explaining the legal basis for the ETS, as well as explanations of certain terms and requirements. For additional details and assistance with compliance, please contact your Reed Smith employment attorney.
Also, please see our Health Industry Washington Watch blog for information on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule that changed the conditions of participation in Medicare and Medicaid to require vaccination of certain healthcare workers.