Karen Whitley, Esq. | November 4, 2021
President Biden announced his Path out of the Pandemic on September 9, 2021, outlining a 6-part strategy to ensure continued progress on the path to recovery (public health and economic) from COVID-19. A key feature of this strategy is “vaccinating the unvaccinated,” which focuses on four categories of workers: federal employees, federal contractors, employees working for large companies, and healthcare workers whose employers receive funding from Medicare or Medicaid. On a rolling basis since September 9th, the Safer Federal Workplace Task Force has been issuing guidance to help federal agencies and federal contractors and subcontractors meet the imminent vaccination deadlines set in President Biden’s Executive Order. Large employers and healthcare employers have been waiting for guidance since September. The wait is over.
On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued its COVID-19 Vaccination and Testing Emergency Temporary Standards (“ETS”) that will apply to employers with more than 100 employees (https://public-inspection.federalregister.gov/2021-23643.pdf). Simultaneously, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance relating to covered healthcare organizations and their employees. Our alert relating to the CMS guidance is available here. The coordinated publication of these two rules helps minimize confusion in situations where a large healthcare organization might have been covered by both sets of rules.
Along with the 490-page ETS, OSHA has also published a summary as well as FAQs, which will likely be updated as these rules are scrutinized by employers. In general, the OSHA documents confirm that employers with 100 or more employees “must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” In establishing the ETS, OSHA determined that COVID-19 presents a grave danger in the workplace to unvaccinated workers because they are more likely to contract and transmit COVID-19 in the workplace than vaccinated workers. According to OSHA, the most effective and efficient control available against the pandemic is vaccination. For those who remain unvaccinated, the ETS requires the additional protections of testing, face coverings, and removal of infected employees from the workplace. OSHA has concluded that larger employers can handle these administrative burdens. Smaller employers should be aware, though, that OSHA is continuing to evaluate whether similar rules could be imposed on them, in the interest of protecting even more workers.
Among the topics covered in these documents are several that our clients have been asking about, including:
What employers are covered by the ETS?
The ETS applies to the broad range of workplaces under OSHA’s jurisdiction that have a “total of at least 100 employees firm or corporate-wide at any time the ETS is in effect.” Under the ETS, an employer must look at its entire U.S. payroll, not just at specific work locations, and include all full-time, part-time, remote workers, and other employees as of November 5, 2021, to decide whether it employs 100 or more employees in the United States. If it does, then the ETS applies to that employer for as long as the ETS is in effect. If an employer does not have 100 employees at the start of the ETS, but later increases its headcount above 100 employees (even if only temporarily), that employer will then have to comply with the ETS, and stay in compliance for as long as the ETS vaccine and testing requirements are in effect, regardless of whether the headcount later falls below 100.
Exceptions to the ETS
Even if an employer has 100 or more employees, the ETS vaccination and testing requirements do not apply to:
- workplaces covered by the Safer Federal Workforce Task Force (federal employers and federal contractors or subcontractors);
- workplaces where employees provide healthcare services or healthcare support services covered by a separate OSHA Healthcare ETS; and
- employees who do not report to a workplace where other individuals such as co-workers or customers are present (such as remote workers or employees who only work outside).
This means that employers will not be subject to more than one set of rules. Because of the different deadlines and opportunities to “opt-out” of mandatory vaccination under each set of rules, employers should carefully evaluate which rules apply to them. It also means that if the ETS apply because of the size of the employer, there may be still some employees (such as fully remote workers) who will not need to be vaccinated or tested.
Who will pay for testing?
Employees who are not fully vaccinated must be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS states that employers need not pay for testing unless required by state law or unless they choose to do so voluntarily. New Hampshire employers should be aware that state law does prohibit employers from requiring employees to pay for the cost of a medical test. The ETS do allow for over-the-counter tests, as long as the test is not both self-administered and self-read.
How much paid leave is required, and who pays for it?
Under the ETS, employers must provide employees with “reasonable time,” including up to four (4) hours of paid time, to receive each vaccination dose (which cannot be deducted from any other paid leave time the employee has available). Employers must also give employees reasonable time and paid sick leave to recover from side effects experienced following each dose. If an employee has accrued paid sick leave, the employer may require that the employee use this time to recover. The employee cannot be required to “go negative” if time is needed to recover from the side effects. The employer would have to provide an additional, reasonable amount of paid leave in that case. OSHA considers that two days of paid time off to recover after each vaccine does would be reasonable.
What do employers do next?
- Employers will need to determine which set of rules apply to them. If the OSHA ETS applies, the employer will need to determine which employees have received their full course of “primary vaccination,” which is the two doses of Pfizer or Moderna vaccines plus two weeks, or the single dose of J&J vaccine, plus two weeks. The current ETS does not require that a booster shot have been received. Employers will need to make sure that they collect proper proof of vaccination.
- Employers covered by the ETS will need to draft a policy that mandates that employees either be vaccinated against COVID-19 or if they remain unvaccinated (whether due to a reasonable accommodation for medical or religious reasons or due to personal choice) undergo weekly testing and wear a face covering at work. Employers can also choose a hybrid model, where some employees must be vaccinated and others have a choice of testing and face mask protocols.
- The ETS sets two deadlines. By December 5, 2021 (30 days after the ETS is published), employers must implement all requirements (except for testing) for employees who are not fully vaccinated (this does not include booster shots). This includes drafting policies, encouraging vaccination, collecting vaccination information, and other preparatory steps. By January 4, 2022, employers must implement the testing protocols for employees who are not fully vaccinated.
- Provide employees information required by the ETS, in appropriate languages, including:
- workplace policies being established to implement the ETS;
- information about protections against retaliation and discrimination and penalties for knowingly supplying false statements or documentation;
- a copy of the CDC document “Key Things to Know About COVID-19 Vaccines”
- on request, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
- Be ready to act if an employee has a positive COVID-test, including removing the employee from work and planning for their return.
What comes next?
The OSHA rules will be published in the Federal Register on November 5, 2021. They will take effect immediately, but they are only a “temporary” interim rule. In order to become permanent, the rules will now be subject to a public comment period that expires on December 5, 2021. In the meantime, all eyes will be on lawsuits that have already been filed, and will continue to be filed, challenging the validity of these rules and the authority of OSHA and CMS to enforce them. For example, there is a clear conflict between what several states have done (banning employers from requiring vaccines, face coverings, or testing) and OSHA’s categorical announcement that the ETS preempt these types of state or local actions.
Members of our Labor and Employment group are available to help employers as they decide whether and how these rules apply to them, as well as to tailor the required policies to their specific workplaces.