Yesterday, the Occupational Safety & Health Administration (“OSHA”) released its much-anticipated Emergency Temporary Standard relating to COVID-19 Vaccination and Testing (“ETS Rule”). The ETS rule applies only to employers with 100 or more employees and covered employers will need to work quickly to implement the ETS Rule’s requirements.
Effective Dates
The OSHA ETS Rule was published in the Federal Register today and is effective immediately. A copy of the publication is available here.
While the ETS rule will be effective immediately, compliance with the ETS Rule is delayed 30 days (i.e., December 6, 2021) and compliance with COVID-19 testing for unvaccinated workers is delayed 60 days (i.e., January 4, 2022).
Because the ETS rule is “temporary,” it will be in effect for six months. At that point, if it wishes for the requirements to continue, OSHA must replace the temporary standard with a permanent standard.
Employers with 100+ Employees
The ETS Rule applies only to employers with 100 or more employees – firm or company-wide – at any time the ETS Rule is in effect. Thus, it is possible that employers with fewer than 100 employees may become covered if they hire additional workers.
In determining the number of employees, employers are instructed to count all employees company-wide, regardless of work location. As OSHA explained in its FAQs:
2.A.1. Are employees who perform work at offsite locations, such as customer homes, counted?
Yes. In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. For example, if an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would fall within the scope of the standard.
Employers are to include part-time, temporary, and seasonal workers that are employed directly by the employer.
Employers do not count true “independent contractors” or employees of other employers, such as workers employed by a staffing firm. As OSHA explained in its FAQs:
2.A.7. How are employees from staffing agencies counted?
In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency. On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).
Excluded Workplaces and Employees
The new OSHA ETS Rule does not apply to certain workplaces and employees.
With respect to excluded workplaces, the OSHA ETS Rule does not apply to the following workplaces:
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- Workplaces covered by the federal contractor rules (i.e., workplaces covered under the Safer Federal Workforce Task Force); and
- Workplaces covered by OSHA’s Healthcare ETS Rule from June 2021, 29 C.F.R § 1910.502 (i.e., settings where any employee provides healthcare services or healthcare support services).
With respect to excluded employees, certain employees of covered employers are not subject to the OSHA ETS Rule, including:
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- Employees who do not report to a workplace where other individuals (such as coworkers or customers) are present;
- Employees while they are working from home; and
- Employees who work exclusively outdoors.
Mandatory Vaccination Policy (with a Caveat)
The OSHA ETS Rule requires covered employers to develop a mandatory vaccination policy that “requires each employee to be fully-vaccinated.” Recognized exceptions include:
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- Employees with medical contraindications;
- Employees who have a medical need to delay vaccination; and
- Employees entitled to a reasonable accommodation because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Notwithstanding the appearance of a “hard” vaccine mandate, the OSHA ETS Standard includes an exemption to the “hard” vaccine mandate if the employer implements a testing regime requiring unvaccinated workers to be tested every 7 days:
The employer is exempted from the [“hard” vaccine] requirement . . . only if the employer establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 . . . and wear a face covering . . . .
Stated differently, employers are permitted to implement a “soft” vaccine mandate as long as the employer promulgates a “written policy” giving employees the option to either: (a) get the vaccine or (b) submit to weekly COVID-19 testing and wear a mask.
Regular COVID-19 Testing (and Masking) for Unvaccinated Workers
The OSHA ETS Rule requires unvaccinated workers provide their employer with documentation showing a negative COVID-19 test within the last seven days in order to be eligible to work at a covered “workplace,” which is any location – fixed or mobile – where the employer’s work or operations are performed. The only limitation is that “workplace” does not include an employee’s “residence.” As a result, unvaccinated workers who work exclusively from home do not need to submit to regular COVID-19 testing.
Unvaccinated workers who have not submitted proof of a negative COVID-19 test must be removed from the workplace until the employee provides a test result. Unvaccinated employees are also required to wear a mask “when indoors or when occupying a vehicle with another person for work purposes.”
Costs of COVID-19 Testing
The OSHA ETS Rule specifies that the rule “does not require the employer to pay for any costs associated with testing.” However, the rule is also careful to note that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.”
In Minnesota, for example, Minn. Stat. § 181.61 provides that “[i]t is unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination . . .” In December 2020, the Minnesota Department of Labor & Industry issued a “reminder” to employers stating:
The Minnesota Department of Labor and Industry (DLI) wishes to remind employers of Minn. Stat. 181.61, which requires employers to cover the costs of any medical examination or the furnishing of any records required by the employer as a condition of employment. This statute applies to mandatory coronavirus (COVID-19) testing required by the employer before employees may return to work. Employees may not have their wages reduced in any way to cover the cost of such a test.
Whether this would apply to testing mandated by OSHA or another federal agency remains to be seen, but it is a strong indication that payment for testing and testing time may be required by Minnesota law.
Even if testing time is compensable under Minnesota state law, employers could potentially avoid paying for testing time by having unvaccinated employees use FDA-approved “rapid tests” at work or the jobsite.
Paid Time Off for Vaccination and Recovery from Vaccination
The OSHA ETS Rule requires covered employers to provide paid time off in two circumstances: (1) when getting vaccinated for COVID-19 and (2) when recovering from getting vaccinated.
First, covered employers are required to provide employees with up to “4 hours of paid time, including travel time, at the employee’s regular rate of pay” for each dose of the COVID-19 vaccine. For this time, employers are not permitted to require employees to use existing PTO, vacation, or sick time balances.
However, if an employee voluntarily chooses to get vaccinated over the weekend or during non-working hours, then the employee is not eligible for pay. As the OSHA FAQs explain:
5.C. If an employee gets vaccinated outside of work hours, such as on a Saturday, do I have to still grant them reasonable time for vaccination?
No. If an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours. . . .
Second, employers are also required to provide “reasonable time and paid sick leave” to employees who are “recover[ing] from side effects experienced following any primary vaccination dose.” In this circumstance, employers are permitted to require employees to use any existing PTO, vacation, or paid sick leave balances for time the employee spends recovering from side effects experienced following a vaccination dose.
No Paid Time for Employees Who Test Positive for COVID-19
The OSHA ETS Rule requires employers to mandate that all employees notify the employer of a positive COVID-19 test or receipt of a COVID-19 diagnosis. Employers must then, in turn, immediately remove from the workplace any employee testing positive or receiving a diagnosis.
Employees may return to the workplace only if the employee meets one of the following requirements:
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- The employee receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
- The employee meets the return to work criteria in CDC’s “Isolation Guidance”; or
- The employee receives a recommendation to return to work from a licensed healthcare provider.
The OSHA ETS Rule makes clear that employees are not entitled to pay under the OSHA ETS Rule. However, employees may be entitled to pay under other federal, state, and local laws:
This section [of the OSHA ETS Rule] does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
In June 2021, OSHA issued a “Healthcare ETS Rule” that applied to hospitals and nursing homes. As part of this rule, employers were required to provide paid leave (called “medical removal benefits”) to employees who tested positive for COVID-19. The OSHA ETS Rule did not include a similar requirement, but, as noted above, employers should be mindful that other paid sick leave laws or collective bargaining agreements could require that employees need to be paid for time that is missed as a result of a COVID-19 diagnosis.
Recordkeeping
The OSHA ETS Rule also includes several recordkeeping requirements, including:
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- Keeping a record of each employee’s vaccination status and associated proof of vaccination from both fully and partially vaccinated employees;
- Keeping a roster of each employee’s vaccination status;
- Storing vaccination records and rosters as they would other employee medical records, and maintaining the confidentiality of the records to the extent required by law; and
- Maintaining records of each COVID-19 test result an employee provides to the employer and maintaining the confidentiality of the test results as the employer would other medical records.
The OSHA ETS Rule also provides that employers must notify OSHA of “each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.”
Will the OSHA ETS Rule Be Challenged?
Yes, after the announcement today, several states have announced that they intend to challenge the OSHA ETS Rule in court. These legal challenges will need to be addressed by the courts, so employers should not assume that the ETS Rule will be struck down.
Bottom Line
The OSHA ETS Rule imposes strict requirements on employers with over 100 employees. Employers subject to this rule must promptly begin working to ensure their workplace policies meet the ETS requirements.
If you need assistance, you can contact anyone on Felhaber Larson’s Labor & Employment team.