On November 4, the Occupational Safety and Health Administration (“OSHA”) released its highly anticipated new Emergency Temporary Standard (“ETS”) requiring companies with 100 or more employees to mandate vaccination of their employees. In addition to the OSHA ETS, CMS simultaneously released its Interim Final Rule (“IFR”) regarding COVID-19 vaccination for covered facilities that receive federal funding from Medicare or Medicaid.
It is critical to note that OSHA’s November 4 ETS does not apply to the following:
- Workplaces or settings where any employee provides health care services or health care support subject to OSHA’s Healthcare ETS published in June 2021;
- Workplaces covered under the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
- Certain remote workers (as discussed further below) or those who work exclusively outdoors.
You may review our alert on the CMS IFR requirements here and on the OSHA Healthcare ETS from June 2021 here.
Key Requirements Under the OSHA ETS
The ETS establishes two key implementation deadlines. The ETS will be published in the Federal Register on November 5, 2021 and goes into effect December 5, 2021. To comply with this federal ETS, by December 5, covered employers must do the following:
- Develop, implement and enforce a mandatory COVID-19 vaccination policy or implement a policy requiring weekly testing of unvaccinated employees;
- Issue the policy to its workforce, including reference to specified CDC guidance and information regarding anti-discrimination and retaliation prohibitions under OSHA;
- Require any unvaccinated employee to wear a proper face covering when indoors or in a vehicle with another person, unless an exception applies;
- Require employees to notify the employer of a positive COVID-19 test or if diagnosed with COVID-19 by a licensed health care provider and immediately remove the employee from work until s/he has satisfied the criteria for returning to work as outlined in the ETS;
- Require employees to provide acceptable proof of their vaccination status, unless the employer has already obtained this information prior to November 5;
- Maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status; and
- 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.
The other key implementation deadline is January 4, 2022. By this date, employers must comply with the following federal ETS requirements:
- For any employee who is not fully vaccinated, require the employee to undergo weekly COVID-19 testing and provide documentation of the test results to the employer no later than the seventh day following the date of the employee’s last test result; and
- For any unvaccinated employee who fails to provide proper or timely COVID-19 test result, remove the employee from the workplace until the test result is provided.
Please note that the requirements do not apply to employees who do not report to a workplace where other individuals such as coworkers, patients, or customers are present; while working from home; or who work exclusively outdoors.
Twenty-two states administer state OSHA plans and will have 30 days to adopt the ETS or a regulation that is “as effective” as the federal ETS. It remains to be seen whether such states will proceed with enforcement along these same timelines as described above.
Vaccine Policies, Exemptions and Key Points
Mandatory Policy and Exemptions
Employers are required to have a written mandatory vaccination policy, though they may elect to allow employees to choose to undergo weekly testing for COVID-19 in lieu of vaccination. Employers, however, do not have to include this “test-out” option as part of their policy.
As expected, employers must allow exemptions from vaccination for employees who fall into one of three categories: (i) those for whom a vaccine is medically contraindicated; (ii) those for whom medical necessity requires a delay in vaccination; or (iii) those legally entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs. Note that even those employees who have been granted an exemption are still required per the ETS to undergo weekly COVID-19 testing. They must also comply with the face covering requirements outlined in the ETS.
Paid Time for Vaccination and Recovery
Employers are not required to pay for the actual test or provide the test to workers who decline the vaccine. However, employers will want to ensure they are not required to pay for testing under other laws, regulations or a collective bargaining agreement.
While the ETS does not require employers to pay for the actual test, it does require employers to provide employees a reasonable amount of time during work hours to receive each primary vaccination dose and up to four hours (including travel time) of paid time at the employee’s regular rate of pay. The applicable FAQ indicates that employers may not offset the four hours of paid time by requiring the employee use any accrued time off, such as sick leave or vacation time. As also shared in the FAQ, if an employee elects to receive the primary vaccination outside of work hours, then employers do not have to grant paid time to the employee.
Employers must also provide employees with reasonable time off and paid sick leave to recover from side effects following the primary vaccination dose. OSHA’s FAQ #5, Employer Support for Employee Vaccination, addresses these pay requirements here.
Penalties and Preemption
Employers that fail to comply with the ETS could be subject to fines of $13,653 per violation for serious violations and ten times that for willful or repeated violations.
OSHA intends for the ETS to preempt states from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan. In particular, OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering or testing.
Hall Render will provide additional resources related to this OSHA ETS in the near future. In the interim, if you have any questions about either rule, please contact:
- Kevin Stella at kstella@wp.hallrender.com or (317) 977-1426;
- Dana Stutzman at dstutzman@wp.hallrender.com or (317) 977-1425;
- Brian Sabey at briansabey@wp.hallrender.com or (720) 282-2025;
- Claire Bailey at cbailey@wp.hallrender.com or (317) 429-3608; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
