LawFlash

Landmark OSHA Emergency Temporary Standard Requires COVID-19 Vaccination or Testing

November 05, 2021

After long anticipation by US companies and their employees, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) published its 490-page Emergency Temporary Standard (ETS) and preamble on COVID-19 vaccination. The ETS establishes binding requirements on large employers (i.e., those with 100 or more employees) to help protect employees from contracting COVID-19 in the workplace. Covered employees must have received their final dose of a vaccine series by January 4, 2022, or be subject to weekly COVID-19 testing. The ETS contains many other requirements, including implementing a written vaccine policy, verifying and maintaining records of the vaccination status of the workforce, offering paid time off for vaccination, and more. Employers must comply with all ETS provisions by December 5, 2021, with the exception of the January 4 vaccination or testing deadline. This milestone ETS is expected to cover 84 million employees.

Alongside the OSHA ETS, the Centers for Medicare and Medicaid Services (CMS) at the Department of Health and Human Services (HHS) published a parallel interim final rule (IFR) governing the same COVID-19 vaccination requirements, but specifically applied to healthcare workers (read our LawFlash on the IFR). The CMS IFR and the OSHA ETS must be read together for companies and employees that work with healthcare facilities, as the CMS IFR is intended to take priority for certain healthcare facilities and staff of non-healthcare entities who have service arrangements with designated healthcare facilities, and does not incorporate a testing requirement as an option.

Given the breadth and detail of the ETS, and the various issues employers will encounter as they plan for compliance, Morgan Lewis’s COVID-19 Task Force will host a webinar on Tuesday, November 16 to carefully walk through the ETS requirements and related business considerations. In the meantime, below is a high-level summary of the ETS and its requirements.

OSHA COVID-19 ETS Highlights

Vaccination Requirement

The OSHA ETS emphasizes that vaccination is the “preferred compliance option” over testing. Indeed, the ETS presumptively requires employers to implement a mandatory vaccination policy, but also permits employers to “opt out” of that requirement and instead require unvaccinated employees to submit to weekly testing. Under the ETS, a mandatory vaccination policy requires all employees who do not opt out to be fully vaccinated unless (1) receipt of the vaccine is medically contraindicated, (2) medical necessity requires a delay in vaccination, or (3) an employee is legally entitled to a reasonable accommodation under federal civil rights laws due to disability or sincerely-held religious beliefs.

One-Hundred-Employee Threshold

The ETS applies to all employers with 100 or more US-based employees. For counting purposes, employees across all US worksites are included. This includes both fully remote workers and part-time workers. Independent contractors and workers employed by staffing agencies are not counted towards the “host” employer’s numbers. Along the same lines, traditional franchisors do not need to count franchisees’ employees. OSHA does not address how companies should consider subsidiaries for purposes of employee counting and ETS coverage, which likely means that absent further guidance, traditional approaches used by the Occupational Safety and Health Review Commission for determination of employee status would apply.

Employers Must Verify Vaccination Status

Whether an employer implements a mandatory vaccine policy or a policy with a test-out option, the ETS requires covered employers to determine the vaccination status of each employee by December 5, 2021. The ETS requires employers to collect and maintain actual proof of vaccination and identifies specific methods of acceptable proof (e.g., with a Center for Disease Control (CDC) vaccine card or a digital copy of the same). The ETS also provides for a narrow exception should an employee be unable to produce acceptable proof. Only in that circumstance, the ETS allows for a signed and dated statement by the employee attesting to their vaccination status, which states they have lost or otherwise are unable to provide proof despite efforts to obtain a new copy and includes certification language relating to the truth and accuracy of the statement that is subject to criminal penalties. An employer is not permitted to accept proof of prior COVID-19 infection or the presence of COVID-19 antibodies as a substitute for vaccination.

Any employee who does not provide one of the forms of proof above must be treated as not fully vaccinated. The ETS also creates a limited exemption for employers that ascertained employee vaccination status prior to the ETS effective date. As long as these employers retained records of attestations or other proof, the employers do not need to comply with the new verification requirements.

Employer Testing Requirements for Unvaccinated Employees

Employers must ensure that all unvaccinated employees—even those with approved accommodations to a vaccination requirement—submit verified, weekly negative tests for COVID-19 after January 4, 2022. This means that employers must review existing testing protocols, if any, and update as needed in accordance with the ETS.

The ETS lays out in detail the requirements of a compliant testing program. Employers can only accept results from tests that are

  • cleared, approved, or authorized (included emergency authorization), by the Food and Drug Administration (FDA) to detect current infection from COVID-19 (e.g., a viral test);
  • administered in accordance with authorized instructions; and
  • ·not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

This means that employees cannot take at-home tests and simply report the results—an approach that many employers hoped to implement. Instead, self-administered tests must be processed by a laboratory, administered by or in the presence of a healthcare provider, or administered in the presence of the employer.

While the ETS remains in effect, employers must maintain records of each test result provided by each employee. The records are considered medical information and must not be disclosed except as required or authorized by federal law.

ETS Does Not Require Employers to Pay for the Costs of Testing

The ETS does not require employers to pay for COVID-19 tests, but it does note that collective bargaining agreements or other laws may require employers to pay. As such, employers will need to consider applicable federal and state law to determine their legal obligations. Employers should also account for practical considerations such as talent retention and labor shortages when determining who should pay for tests.

Employer Face Covering Requirements for Unvaccinated Employees

Employers must ensure that unvaccinated employees are wearing face coverings when indoors or in a car with another person for work purposes. Exceptions apply in limited situations—for example, when an employee is alone in a room with floor-to-ceiling walls and a closed door, or actively eating or drinking at the workplace. The ETS also provides details on which face coverings are acceptable. Under the ETS, employers are not required to pay for costs associated with face coverings—although, as above, payment may be required by other laws or collective bargaining agreements.

Excluding Employees Who Test Positive for COVID-19 and Related Return to Work Requirements

Regardless of vaccination status, employers must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. Employers must immediately remove these individuals from the workplace.

Employees who test positive or are diagnosed with COVID-19 may only return to work after they

  • meet the return-to-work criteria in the CDC's Isolation Guidance;
  • receive a recommendation to return to work from a licensed healthcare provider; or
  • take a COVID-19 nucleic acid amplification test (which includes PCR tests) after receiving a positive test result on a COVID-19 antigen test and obtain a negative result.

It should be noted that the ETS does not require contact tracing, or the notification and removal of close contacts from the workplace. Instead, OSHA simply recommends that employers follow CDC guidance.

Mandatory Paid Time Off for Vaccination and Recovery

The ETS requires covered employers to “support” COVID-19 vaccination by providing a “reasonable amount of time” to employees for each of their primary vaccination doses, including up to four hours of paid time off (PTO) per dose, and travel time at the employee’s regular rate of pay. Importantly, the ETS prohibits employers from offsetting vaccine PTO with any existing PTO in an employee’s bank.

Employers must also provide “reasonable time and paid sick leave” to recover from side effects. The ETS expressly allows for employers to require employees to use existing PTO for recovery purposes, but prohibits employers from forcing employees to go into a negative PTO balance or apply unaccrued PTO for recovery purposes.

Employers must offer these benefits starting on December 5, 2021.

Required Information to Communicate to Employees

Employers must inform employees of the requirements of the ETS, the employer’s related policies and procedures (e.g., the written ETS-compliance vaccination policy) and the benefits of COVID-19 vaccination. The ETS contains specific requirements, such as providing a specific CDC factsheet on vaccination and informing employees of applicable laws related to providing false statements/documents and antiretaliation.

However, the ETS does not establish any formal training requirements. As such, employers have flexibility regarding how to convey the required information to its workforce (e.g., email communication, written fact sheets, or in-person meetings) and there are no specific recordkeeping obligations.

Reporting and Recordkeeping

Covered employers must maintain a full roster of each employee’s vaccination status along with the individual records of vaccination. Upon a request from an employee, employers must make that employee’s own COVID-19 vaccination documentation and/or any COVID-19 test available by the end of the business day. The employer must also provide a requesting employee (or employee representative) with the number of employees at a worksite and aggregate number of vaccinated employees at the worksite by the next business day.

Employers must provide the same information to OSHA within four hours of a request. In addition, the ETS established new reporting requirements specific to COVID-19. Employers must report any “work-related” COVID-19 fatality to OSHA within eight hours and any “work-related” COVID-19 in-patient hospitalization within 24 hours of the employer learning about it—this is a change from OSHA’s guidance earlier in the pandemic, when the reporting requirement triggered only if the hospitalization occurred within 24 hours of the underlying exposure.

Exceptions for Remote Workers and Workplaces Covered by Other Mandates

The ETS will not apply to workplaces that must comply with the CMS rule or the COVID-19 vaccine guidance for federal contractors.

The ETS also does not apply to employees who work at home, at workplaces where no other people are present, or exclusively in outdoor settings. However, employees who may on occasion be required to perform in-person work (including “fully remote” employees), must either be fully vaccinated or obtain a negative test result within seven days of performing the in-person work.

Further Regulation

The ETS takes effect immediately, but it also serves as a proposed rule subject to further comment and revision. The ETS seeks further comment from employers and stakeholders on a range of issues, including the possibility of applying COVID-19 safety standards to smaller employers and whether OSHA should require a strict vaccination mandate with no testing alternative instead of the current vaccine and testing option.

Next Steps for Employers

All covered employers should closely review the OSHA ETS with their attorneys to develop a comprehensive compliance strategy. The planning process should begin as soon as possible given the upcoming compliance deadlines. This is true even for businesses that already have vaccine mandates in place. Among other reasons, these new requirements are highly prescriptive and (in all likelihood) will exceed what many employers have rolled out on a voluntary basis.

Major Developments for Healthcare Workers and Federal Contractors

Beyond OSHA, the CMS’s IFR requires healthcare workers at facilities participating in the Medicare and Medicaid programs to be fully vaccinated. CMS makes clear that its IFR will take priority when determining the interaction between the OSHA ETS and the CMS IFR. Covered facilities include a large array of entities that are certified by CMS and penalties for failure to comply include termination and, potentially, closure. Covered entities include hospitals, ambulatory surgery centers, dialysis facilities, home health agencies, and long-term care facilities, as well as a range of clinics, including Federally Qualified Health Centers, rural health clinics and other certified providers. The CMS rule, which does not contain a “test out” option, is expected to cover 17 million workers and contains the same January 4, 2022 deadline as the OSHA ETS. The rule applies to employees regardless of whether their positions are clinical or non-clinical and also covers students, trainees, volunteers, and contractors. As noted above, staff on service contracts with covered facilities or physicians who may serve on medical staffs of institutions are indirectly covered, as the CMS rule would apply to these individuals and these entities.

Finally, the White House announced that the deadline for federal contractor vaccination, which was previously December 8, 2021, will be moved to January 4, 2022 to better align with vaccination deadlines for the CMS rule and the ETS. Moreover, covered federal contractor worksites (i.e., worksites subject to the federal contractor executive order and related guidelines) are not covered by the ETS.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: 

Los Angeles
Jacqueline C. Aguilera
Jason S. Mills

New York
Daniel A. Kadish

Orange County
Daryl S. Landy

Philadelphia
Brandon J. Brigham
A. Klair Fitzpatrick
Michael J. Puma

Princeton
Emily Cuneo DeSemdt

Washington, DC
Sharon P. Masling
Jonathan L. Snare
Kaiser H. Chowdhry
Alana F. Genderson
Russell R. Bruch
Howard J. Young