OSHA Issues Emergency Temporary Standard for COVID-19 with Vaccinate-or-Test Mandate for Private Sector Employers with 100 or More Employees
Key Points:
- On November 4, 2021, OSHA issued an ETS requiring that all employers with 100 or more employees ensure that their employees are fully vaccinated against COVID-19 by January 4, 2022, or tested weekly.
- By December 5, 2021, employers must comply with all other ETS requirements, including providing paid time off for employees to get vaccinated and ensuring that unvaccinated workers wear face coverings in the workplace.
- The ETS will remain in place until withdrawn or replaced with a permanent standard. To avoid overlapping requirements, the ETS will not apply to workplaces subject to other federal vaccination requirements, which are now harmonized with the timing of the ETS to all carry a common January 4, 2022, vaccination deadline.
- Although coming legal challenges may interfere with implementation and enforcement, employers should begin laying the groundwork for compliance right away, while keeping a close eye on legal developments.
On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring that employers with 100 or more employees ensure that their employees are fully vaccinated against COVID-19 or tested weekly for COVID-19.1 The much-anticipated ETS adds to a multifaceted effort by the Biden-Harris administration to address the COVID-19 pandemic through workplace rules—including a prior OSHA ETS focused on the health care industry, Executive Orders requiring federal contractors and federal employees to be vaccinated, and a new emergency regulation issued by the Centers for Medicare & Medicaid Services requiring health care workers at facilities participating in Medicare and Medicaid to be vaccinated. OSHA expects that the ETS will apply to more than 80 million workers,2 and it is certain to face a number of legal challenges. In this alert, we provide a summary and analysis of the ETS for employers subject to its requirements.
Covered Employers
The ETS applies to private employers with at least 100 employees.3 For a single corporate entity with multiple locations, all employees at all U.S. locations are counted for purposes of the 100-employee threshold.4 Part-time employees count toward the company total; independent contractors do not.5 Employees who are not covered by the ETS (e.g., employees working from home) are still counted towards the 100-employee threshold.6 An employer will be covered by the ETS if it reaches the 100-employee threshold while the ETS is in effect, and will remain covered even if it then drops below 100 employees.7
In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.8 In other situations, two or more related entities may be regarded as a single employer if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.9
The ETS does not apply to workplaces subject to the vaccine mandate in Executive Order 14042 applicable to federal contractors or work settings subject to OSHA’s COVID-19 ETS for health care workers.10
Covered Individuals
The ETS applies to all employees who come into physical contact with others while working in a workplace. The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, who work from home, or who work exclusively outdoors.11 However, the ETS applies in the event an employee who typically works remotely comes to a workplace.
The ETS’s Requirements
Vaccination or weekly testing. Employees must be fully vaccinated for COVID-19 by January 4, 2022, or be subject to weekly testing. Though an employee becomes fully vaccinated two weeks after completing primary vaccination (two doses of the BioNTech/Pfizer or Moderna vaccine or one dose of the Johnson & Johnson vaccine), an employee who receives all required shots by January 4, 2022, does not have to be tested, even if the employee has not completed the two-week waiting period.12
Proof of vaccination. Employers must require each vaccinated employee to provide acceptable proof of vaccination status.13 Acceptable proof of vaccination includes:
- a record of immunization from a health care provider or pharmacy
- a copy of the COVID-19 Vaccination Record Card
- a copy of medical records documenting the vaccination
- a copy of immunization records from a public health, state or tribal immunization information system
- a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).14
If an employee is unable to produce such proof, the employee can provide a signed and dated statement that attests to his or her vaccination status and attests to having lost and being otherwise unable to produce proof of vaccination.15 If an employer has ascertained and documented employee vaccination status prior to the implementation of the ETS, the employer does not need to obtain additional proof.16
Testing in lieu of vaccination. Employees who do not submit proof of vaccination must test at least once every seven days and provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date on which the employee last provided a test result.17 The ETS does not require employers to pay for costs associated with COVID-19 testing.18 However, employers may still be required to do so for employees entitled to an accommodation under the Americans with Disabilities Act (ADA) because of a disability or under Title VII of the Civil Rights Act because of a sincerely held religious belief, practice or observance. Employers will have to engage in an interactive process with an employee who requests such an accommodation to determine if the employee is eligible and whether accommodation would cause undue hardship and may therefore be denied.
If an unvaccinated employee who typically works remotely comes into the workplace, the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace.19
Permissible tests. A permissible test is one that has been cleared, approved or authorized by the Food and Drug Administration (FDA) to detect current infection with the SARS- CoV-2 virus (e.g., a viral test), is administered in accordance with the authorized instructions, and is not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.20 Thus, over-the-counter self-tests are not permissible unless they are observed or proctored in accordance with the ETS.
Employees who test positive for COVID-19. Regardless of vaccination status, an employee who tests positive for, or is diagnosed with, COVID-19 must promptly notify the employer.21 The employee must be immediately removed from the workplace and may not return until the employee meets the return to work criteria in the Centers for Disease Control and Prevention’s (CDC) isolation guidance, receives a recommendation to work from a licensed health care provider, or receives a negative result on a COVID-19 nucleic acid amplification test following a positive result on a COVID-19 antigen test.22 Because of the risk of subsequent false positives, for 90 days following a positive test or diagnosis, the employer is not permitted to require that the employee test for COVID-19.23 The ETS does not require employers to provide paid time off to any employee removed from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19, but employers should allow their employees to make use of any accrued leave in accordance with the employer’s policies and practices on use of leave or as otherwise required by law.24
Face coverings, facemasks and respirators. The ETS contains separate definitions of “face coverings,” “facemasks” and “respirators.”25 Employers must ensure that all unvaccinated employees wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except when an employee is alone in a fully enclosed space; when the employee is eating or drinking or for safety and security identification purposes, for a limited time; when an employee is wearing a respirator or facemask; or when wearing a face covering is not feasible or would create a greater hazard.26 Employers cannot prohibit employees, regardless of vaccination status, from voluntarily wearing a face covering or facemask, unless it creates a serious workplace hazard, and cannot prohibit customers or visitors from wearing face coverings.27Employers do not have to pay for face coverings unless required to do so by other laws, regulations or agreements.28
OSHA does not consider cloth face coverings to be personal protective equipment (PPE), while respirators like N-95 masks are considered to be PPE. While not required under the ETS, if an employer opts to provide employees with respirators instead of face coverings, the employer must also comply with 29 C.F.R. 1910.504 (the mini respiratory protection program), which places training and/or notice requirements on employers providing, or whose employees voluntarily provide, respirators in the workplace.29
The ETS does not require employers to pay for tests or to provide compensation for time spent taking tests. The ETS does not require employers to pay for testing or provide paid time off for testing. However, time spent testing may be compensable under federal or state law, and state law may prohibit the employer from requiring employees to use paid leave for vaccination or testing.30
Paid time off for vaccination and recovery from side effects. Employers must provide a reasonable amount of time to each employee during work hours for each vaccination dose, including up to four hours of time paid at the employee’s regular rate of pay (including travel time).31 If an employee needs more than four hours to get fully vaccinated, the employee may use additional, otherwise available paid leave.32 The ETS does not require employers to reimburse employees for associated transportation costs.33 Employers must also provide reasonable time and paid sick leave to employees recovering from vaccine side effects and may require employees to use accrued sick leave.34 Other federal, state or local laws, or collective bargaining agreements, may require employers to provide employees additional paid time for vaccination and/or paid sick leave to recover from vaccination side effects. Where such an overlap exists, the requirements of the ETS are satisfied so long as the employer provides each employee reasonable time and four hours of paid time to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following a primary vaccination dose.35
Written policy. Employers must develop, implement and enforce a written mandatory vaccination policy or a written policy allowing any employee not subject to a mandatory vaccination policy to choose to either (i) be fully vaccinated against COVID-19 or (ii) provide proof of regular COVID-19 testing and wear a face covering, as required by the ETS.36
Providing information to employees. Employers must provide their employees with (i) information about what the ETS requires and the policies and procedures the employer is establishing or has established to implement the ETS; (ii) a copy of the CDC document “Key Things to Know About COVID-19 Vaccines”; (iii) information about protections against retaliation and discrimination;37 and (iv) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation (specifically, 18 U.S.C. § 1001 and Section 17(g) of the OSH Act).38
Isolation guidance. The ETS incorporates the CDC’s February 18, 2021 isolation guidance, which can be found here.39
Confidentiality. The ETS reinforces that employers must treat information regarding an employee’s COVID-19 vaccination status and/or testing results just as they would any other employee confidential medical records under 29 C.F.R. 1910.1020 and the ADA, storing the information separately from the employee’s personnel file.40 Employee vaccination and test records obtained under the ETS are not subject to the retention requirements of 29 C.F.R. 1910.1020(d)(l)(i), but such records must be maintained and preserved while the ETS is in effect.41 Employers should also ensure they comply with any relevant state laws regarding obtaining and storing confidential employee medical information.
Recordkeeping. Notwithstanding the above confidentiality requirements, employers must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and to anyone having written, authorized consent of that employee by the end of the next business day after a request.42 The ETS also provides that, by the end of the next business day after a request by an employee or an employee representative, the employer must make available to the requester the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.43
Under paragraph 1910.501(l)(3) of the ETS, employers also must provide to OSHA, within four business hours of a request, (i) the employer’s written policy on vaccination or mandatory testing, and (ii) the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.44 By the end of the next business day after a request, the employer must provide to OSHA all other records and other documents required to be maintained by the ETS.45
Reporting of occupational COVID-19 deaths and hospitalizations. Employers must report in-patient hospitalizations for work-related confirmed cases of COVID-19 if the hospitalization occurred within 24 hours of an exposure to COVID-19 at work.46 Employers must also report fatalities for work-related confirmed cases of COVID-19 if the fatality occurred within 30 days of an exposure to COVID-19 at work.47 Pursuant to previous OSHA guidance, employers do not need to record adverse reactions from COVID-19 vaccines on their OSHA 300 Logs, at least through May of 2022, but must continue to record their employees’ work-related confirmed cases of COVID-19 and any associated fatalities, as required by 29 C.F.R. 1904.4(a).48 OSHA does not offer additional guidance for how employers are supposed to determine whether an employee’s exposure to COVID-19 occurred in the workplace, which in most cases is likely to be a nearly impossible task due to the widespread community transmission of the virus.
Penalties for Noncompliance
Following an inspection of a workplace, OSHA enforces its regulations through the issuance of citations that can carry monetary penalties up to $136,532 in the case of willful or repeat violations. Serious or other-than-serious violations can draw fines of up to $13,653.
OSHA has nowhere near the number of compliance officers needed to enforce the ETS at all covered U.S. workplaces. Employers should instead expect that OSHA will rely heavily on employee complaints to OSHA in prioritizing enforcement. OSHA prohibits employers from retaliating against employees for raising health and safety concerns.49
Deadlines
Employers must comply with all aspects of the ETS other than vaccination and testing by December 5, 2021. 50 This means that by December 5, employers must:
- Establish, implement and enforce a written policy on vaccination.51
- Determine the vaccination status of each employee.52
- Provide paid time off for vaccination and recovery from side effects.53
- Ensure compliance with requirements regarding the reporting of positive tests and removal of those who test positive or are diagnosed with COVID-19 from the workplace.54
- Ensure that unvaccinated employees are masked when indoors and when occupying a vehicle with someone else for work, except in the limited circumstances described above.55
- Provide the required information and documents to employees, as discussed above.56
- Report work-related COVID-19 fatalities and in-patient hospitalizations as required by the ETS.57
- Be prepared to make COVID-19 vaccine documentation and test results available as required by the ETS.58
By January 4, 2022, employees must receive all required shots or begin weekly testing.59
The ETS will remain in effect until withdrawn or superseded by a permanent standard, which must be issued no later than six months after publication of the ETS in the Federal Register.60 Because the ETS serves as notice of OSHA’s intended permanent rule, interested persons will have 30 days following publication in the Federal Register to submit written data or comments on whether the ETS should become a final rule (or to object and request a public hearing), but will have 60 days following publication to submit comments on information collection.61 OSHA may amend the ETS at any time as conditions change.
Application to State Plan States
Not all jurisdictions are subject to OSHA’s regulations. Many states have their own approved state occupational safety and health plans. So-called “state plan states” must adopt the requirements of the ETS, or alternative measures that are “at least as effective,” no later than December 5, 2021 (30 days after publication).62 A state that fails to do so may have approval of its plan revoked, which could return jurisdiction over occupational safety and health in that state to federal OSHA.63
Contrary State Laws
A few states have laws or executive orders prohibiting employers from implementing vaccine mandates or imposing restrictions on their ability to do so beyond limitations imposed by the ADA and Title VII.64 However, the ETS expressly preempts such laws and orders.65
The Road Ahead
Legal challenges to the ETS are certain. OSHA may bypass normal rulemaking procedures and publish an ETS only when the Secretary of Labor determines (A) that employees are exposed to grave danger from exposure to toxic or physically harmful substances or agents or from new hazards, and (B) that the ETS is necessary to protect employees from such danger.66 On September 16, 2021, the attorneys general of 24 states sent President Biden an open letter previewing legal arguments that the ETS fails to comply with statutory requirements of an ETS—namely that employees are not in grave danger; the SARS-CoV-2 is not a substance, agent or hazard within the meaning of the law; and the ETS is not necessary to address danger posed by the pandemic.67 We can expect such arguments to be made in courtrooms soon as parties opposing the ETS seek injunctive relief.
1 The ETS will be published in the Federal Register on November 5, 2021.
2 See https://www.osha.gov/news/newsreleases/national/11042021.
3 See 29 C.F.R. § 1910.501(b)(1).
4 See ETS preamble (https://public-inspection.federalregister.gov/2021-23643.pdf) at page 341.
5 See ETS preamble at 341.
6 Id.
7 Id.
8 Id.
9 Id.
10 See 29 C.F.R. § 1910.501(b)(2).
11 See 29 C.F.R. § 1910.501(b)(3).
12 See 29 C.F.R. § 1910.501(m)(ii).
13 See 29 C.F.R. § 1910.501(e)(2).
14 See 29 C.F.R. § 1910.501(e)(2)(i)–(v).
15 29 C.F.R. § 1910.501(e)(2)(vi)(A)–(B).
16 29 C.F.R. § 1910.501(e)(5).
17 29 C.F.R. § 1910.501(g).
18 See ETS preamble at 122.
19 See 29 C.F.R. § 1910.501(g)(ii).
20 See 29 C.F.R. § 1910.501(c).
21 See 29 C.F.R. § 1910.501(h)(1).
22 See 29 C.F.R. § 1910.501(h)(2).
23 See 29 C.F.R. § 1910.501(g)(3).
24 Id.
25 See 29 C.F.R. § 1910.501(c).
26 See 29 C.F.R. § 1910.501(i)(1)(i)–(iv).
27 See 29 C.F.R. § 1910.501(i)(3), (5).
28 See 29 C.F.R. § 1910.501(i) Note 2.
29 See 29 C.F.R. § 1910.501(i)(4).
30 For example, California requires employers who mandate testing or vaccination for COVID-19 to “pay for the time it takes for testing or vaccination, including travel time” and “cannot require the worker to utilize paid leave” for such time. See https://www.dir.ca.gov/dlse/COVID19resources/FAQs-Testing-Vaccine.html.
31 See 29 C.F.R. § 1910.501(f)(1).
32 See ETS preamble at 390.
33 See ETS preamble at 388.
34 See 29 C.F.R. § 1910.501(f)(2); ETS preamble at 390.
35 See ETS preamble at 392–93.
36 See 29 C.F.R. § 1910.501(d).
37 Specifically, employers are required to provide information about the requirements detailed in 29 C.F.R. § 1904.35(b)(1)(iv) and section 11(c) of the OSH Act. See 29 C.F.R. § 1910.501(j)(3).
38 See 29 C.F.R. § 1910.501(j).
39 See 29 C.F.R. § 1910.509(b)(5).
40 See 29 C.F.R. § 1910.501(e)(4), (g)(4); https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
41 See 29 C.F.R. § 1910.501(e)(4), (g)(4).
42 See 29 C.F.R. § 1910.501(l)(1).
43 See 29 C.F.R. § 1910.501(l)(2).
44 See 29 C.F.R. § 1910.501(l)(3)(i).
45 See 29 C.F.R. § 1910.501(l)(3)(ii).
46 29 C.F.R. § 1904.39(b)(6) (Employers must report such hospitalizations within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19).
47 Id. (Employers must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19).
48 See https://www.osha.gov/coronavirus/faqs#reporting.
49 See 29 U.S.C. § 660(c).
50 See 29 C.F.R. § 1910.501(m)(2)(i).
51 See 29 C.F.R. § 1910.501(d).
52 See 29 C.F.R. § 1910.501(e).
53 See 29 C.F.R. § 1910.501(f).
54 See 29 C.F.R. § 1910.501(h).
55 See 29 C.F.R. § 1910.501(i).
56 See 29 C.F.R. § 1910.501(j).
57 See 29 C.F.R. § 1910.501(k).
58 See 29 C.F.R. § 1910.501(l).
59 See 29 C.F.R. § 1910.501(m)(2)(ii).
60 See 29 U.S.C. § 655(c)(3).
61 See ETS preamble at 1–2; see also OSHA’s Vaccination and Testing ETS: How You Can Participate (https://www.osha.gov/sites/default/files/publications/OSHA4155.pdf).
62 See 29 C.F.R. § 1953.5(b).
63 See 29 C.F.R. § 1955.3(a).
64 See, e.g., https://www.arkleg.state.ar.us/Acts/FTPDocument?path=%2FACTS%2F2021R%2FPublic%2F&file=1115.pdf&ddBienniumSession=2021%2F2021R (Arkansas law permitting exemption from mandatory vaccination or testing in if the employee proves “immunity for the virus” every six months); https://www.legis.iowa.gov/legislation/BillBook?ga=89&ba=HF902 (Iowa law requiring employers to grant exemption when employee submits a statement “that receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee” or “that receiving the vaccine would conflict with the tenets and practices of a religion of which the employee is an adherent or member”); https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf (Montana law prohibiting mandates); https://gov.texas.gov/uploads/files/press/EO-GA-40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf (Texas executive order prohibiting a mandate when the employee “objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19”).
65 See 29 C.F.R. § 1910.501(a).
66 See 29 U.S.C. § 655(c)(1).
67 See https://ago.wv.gov/Documents/AGs'%20letter%20to%20Pres.%20Biden%20on%20vaccine%20mandate%20(FINAL)%20(02715056xD2C78).PDF.
