This article, originally published on November 5, 2021, has been revised following OSHA’s withdrawal of the vaccination-or-test emergency temporary standard.
As companies of all types and sizes continue to deal with the legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on our COVID-19 site.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS was published in the Federal Register on November 5, 2021, and it is effective immediately.
Employers must comply with most provisions of the ETS within 30 days after the ETS is published in the Federal Register, which would make the compliance deadline December 5, 2021. Employers must comply with the testing requirement within 60 days after the ETS is published in the Federal Register, which would make this deadline January 4, 2022.
Under the ETS, covered employers 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 (1) get vaccinated or (2) undergo regular COVID-19 testing and wear a face covering at work.
OSHA has published a fact sheet highlighting some of the key requirements of the ETS, along with an ETS summary and Frequently Asked Questions. The following are some key highlights from the OSHA documents:
Which employers are covered by the ETS?
- Private employers with 100 or more employees. The number of employees is counted on a “firm” or “corporate-wide” basis.
Which workplaces are not covered by the ETS?
- Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors;
- Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502);
- Workplaces of employers who have fewer than 100 employees in total; and
- Public employers in states without State Plans.
If an employer is covered by the ETS, does that mean all employees must follow its provisions?
No. The requirements of the ETS do not apply to:
- Employees who do not report to a workplace where other individuals are present;
- Employees while working from home; or
- Employees who work exclusively outdoors.
What does the ETS require employers to do?
- Develop, implement, and enforce a mandatory COVID-19 vaccination policy OR establish, implement, and enforce a policy allowing employees to elect either (1) to get vaccinated or (2) undergo weekly COVID-19 testing and wear a face covering at the workplace. Employers are not required to pay for testing for those employees who opt to forego vaccination unless otherwise required by state law or a collective bargaining agreement.
- Implement a policy requiring employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
- Provide employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
- Implement a policy requiring each employee who is not fully vaccinated to 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).
- Implement a policy that requires any employee, regardless of vaccination status, who tests positive for COVID-19 or is diagnosed with COVID-19 by a licensed healthcare provider, to be removed from the workplace and prohibited from returning until certain criteria are met.
- Implement a policy requiring each employee who is not fully vaccinated to wear a face covering when indoors or when occupying a vehicle with another person for work purposes. Exceptions may apply.
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- 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.
- Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.
Does the ETS allow for medical, religious, or other accommodations?
The mandatory vaccination policy under the ETS requires vaccination of all employees, including all new employees as soon as practicable, other than employees:
- For whom a vaccine is medically contraindicated;
- For whom medical necessity requires a delay in vaccination; or
- Those legally entitled to a reasonable accommodation under federal civil rights law because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Does the ETS specify the type of testing that is approved?
The ETS states that employees who are not fully vaccinated must be tested with COVID-19 tests that are:
- Viral tests that are cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the Food and Drug Administration;
- Administered in accordance with the authorized instructions; and
- Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Employers may have costs associated with doing, observing, or proctoring employee testing, if employers choose to do so.
How does the ETS impact Governor Abbott’s Executive Order GA-40 issued on October 11, 2021, prohibiting mandatory vaccine programs?
In its Frequently Asked Questions, OSHA states that the ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. OSHA further states “that it intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.” As such, it is clear that OSHA will take the position that this ETS preempts Executive Order GA-40.
DOL Requests Comments from the Public
Although the ETS is temporary, its requirements are effective immediately. The DOL has requested comments from the public on whether the ETS should be adopted as the final standard or whether it should be modified. The comment period closes on December 6, 2021. Among other things, OSHA requests comments on:
- Whether to adjust the scope of the ETS to address smaller employers (employers with fewer than 100 employees);
- Whether the final standard should include an exception from vaccination or testing and face covering based on a prior infection with Covid-19;
- Whether OSHA should implement a strict vaccination requirement with no alternative compliance option; and
- Whether the final standard should include requirements for social distancing, barriers, ventilation, or sanitation.
Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.