OSHA Publishes Anticipated Federal Vaccine and Alternative Testing Requirements

November 10, 2021

Just days ago, the Occupational Health and Safety Administration (OSHA) issued its anticipated federal standard for mandating the COVID vaccine.  Briefly, the emergency temporary standard (ETS) requires employees of private employers with more than 100 employees to be vaccinated for COVID or submit to regular COVID testing.  Here is a summary of the key features of the full ETS published in the Federal register:

  • Which Employers Must Comply? All private employers under OSHA’s authority and jurisdiction who employ a total of 100 or more individuals at any time when the ETS is in effect must comply.  The 100-employee threshold applies firm or corporate-wide.  This means that private employers with multiple locations must count all of their employees together to determine if they satisfy the 100-employee threshold.  Separate, but related corporate entities which centralize “safety matters” must also count all employees together.  Franchisee locations with separate ownership would count their employees separately from the franchisor, and staffing agencies, as opposed to the host site are considered the employer for purposes of counting employees.  It is estimated that two-thirds of all private-sector workers will be covered by the ETS.
  • Which Employees are Excluded? The ETS does not apply to employees who work remotely, exclusively outdoors, or alone, i.e., they report to a workplace where no co-workers or customers are present.  These employees must be counted toward the 100-employee threshold, but they do not have to comply with the vaccination/testing requirements.
  • What are the Requirements? The ETS has 7 main components:  1) Mandated COVID Vaccination Policy or Choice to Test and Mask 2) Testing and Masking of the Unvaccinated, 3) Monitoring and Removal of COVID Positive Employees; 4) Paid time off for vaccinations, 5) Record keeping of vaccination and testing results, 6) Notice to employees about COVID and employee rights; and 7) Reporting.
    • Mandatory COVID Vaccination or Choice of Vaccine or Testing. Covered employers must prepare and enforce a policy that either mandates employees get the COVID-19 vaccines or requires employees to choose to either be vaccinated or undergo weekly COVID-19 testing and wear a face covering at work.
    • Testing and Masking. 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 does not require employers to pay for any costs associated with testing, but they may volunteer to do so. Employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. As far as masks go, employers must ensure that every employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers also are not allowed to prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).
    • Monitor and Remove COVID + Employees. Employers must require that their employees promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.  The ETS also requires that employers immediately remove any employee from the workplace, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep those employees out of the workplace until they meet criteria for returning to work.  This is consistent with CDC guidance which does not require vaccinated individuals exposed to COVID to quarantine unless they have symptoms or test positive.
    • Paid Time Off. Employers must provide employees reasonable time, including up to four (4) hours of paid time, to receive each vaccination dose and/or to recover from the side effects experienced following each dose of the COVID vaccine.
    • Record Keeping. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, including a roster of employee vaccination status.
    • Notice. Employers must provide employees in a language and at a literacy level they understand: (1) information about the requirements of the ETS and workplace policies established as a result thereof; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation regarding COVID status.
    • Reporting. Covered employers are required to report to OSHA COVID-19 fatalities and hospitalizations.   Fatalities must be reported within 8 hours, and work-related COVID-19 in-patient hospitalizations within 24 hours, of the employer learning of the event.
  • What are the Deadlines? Employers have 30 days after publication, i.e., by December 5, 2021, to implement the vaccination and other requirements (except for testing).  Employers have 60 days after publication, i.e., January 4, 2022, to provide testing for employees who have not received all doses required for vaccination.   In essence this means that covered employers must by December 5 have their vaccination and record keeping policies ready, be providing required information to employees, know and track the vaccination status of the workforce, and be giving paid time off for vaccinations.  Employers must ensure that workers get the final – or only – dose of the COVID-19 vaccine by January 4, 2022, before testing must begin.
  • What are the Penalties for Non-Compliance? Noncompliant employers can face fines up to $14,000 per unvaccinated worker, implemented and enforced by OSHA.

The ETS purports to preempt state and local rules.  Several Republican-governed states, including New Hampshire, have already committed to mounting lawsuits challenging the ETS.   One Federal court (the Fifth Circuit) has already put a nationwide pause on the ETS.  But whether these challenges will succeed to strike down the ETS remains to be seen.

Arguably, the ETS is not a vaccine mandate as it allows employers to choose as an alternative to permit employees to “test out” of the vaccine mandate.   In theory, this should prevent mass resignations of employees who object to vaccine mandates and avoid significant staff shortages employers are concerned will be triggered by the ETS.

As for the issue of federal preemption, the argument will likely be that what really preempts state and local law under the Federal Supremacy Clause is OSHA’s statutory “general duty” requirement, as opposed to the ETS itself.  The ETS is really just the agency interpretation of same under current circumstances.  That interpretation is entitled to a certain amount of deference, but that deference is not absolute and courts could overturn it depending on the circumstances in any case, as more fully discussed here.  Even so, there is still the issue of whether a vaccine mandate or the other requirements of the ETS are themselves an overreach of OSHA’s general authority.

In the meantime, covered employers are well advised to understand the ETS make a plan to comply while we await a final decision on its enforceability.  OSHA is offering compliance assistance to help businesses implement the standard, including a webinarfrequently asked questions and other compliance materials.  If Courts uphold the ETS, it might actually provide helpful legal cover to employers who wanted to implement vaccine mandates on their own to avoid business interruptions that happen when employees bring COVID to the workplace.