The U.S. Occupational Safety and Health Administration (OSHA) published a new emergency temporary standard (“ETS”) today, effective immediately, with compliance required by December 5, 2021. The ETS will remain in effect for six months, and expires on May 5, 2022. The ETS comes after President Biden announced sweeping new vaccination mandates in September, and marks the first time the federal government has set a standard treating a respiratory virus as an occupational hazard outside of the healthcare context.
The ETS covers more than 84 million workers, and applies to private sector employers with 100 or more employees. This includes employees who work from home, full-time and part-time workers, seasonal employees, and minors. The ETS does not cover independent contractors or personnel from temporary staffing agencies.
The ETS sets the standards for minimum requirements, and does not prevent employers from implementing additional protocols above and beyond the newly required measures. Additionally, the ETS overrules inconsistent state or local laws addressing employers’ abilities to make vaccinations mandatory for their workforce.
Under the ETS, employers must develop and implement a mandatory written vaccination policy, and require proof of vaccination. Covered employers may only be exempted from doing so if they implement and enforce a written policy requiring all employees to be fully vaccinated, or otherwise undergo weekly testing and wear face coverings. There are three narrow categories of employees for whom vaccination is not mandated: 1) employees for whom a vaccine is medically contraindicated; 2) employees for whom a medical necessity requires a delay in vaccination; and 3) employees who are entitled to a reasonable accommodation due to a disability or sincerely held religious belief.
Employers are obligated to provide a maximum of four hours of paid time off for employees to receive each dose, which cannot be set off by other leave time. Employers must also provide “reasonable time and paid sick leave to recover from side effects,” but employers may require employees to use existing sick leave.
Employers are required to obtain acceptable proof of employees’ vaccinations, and maintain records of each employee’s status as vaccinated or unvaccinated. Vaccination cards, health care provider records, or “official documents” containing the date, location, and type of vaccine, are all considered acceptable proof. If the employee cannot provide any of the above documents, the employee may complete a form with the type of vaccine given, dates of administration, and the location where it was provided, along with an attestation certifying “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
Compliance with testing requirements for unvaccinated employees is mandated by January 4, 2022. Employees who have completed their full vaccination series within 60 days of the ETS publication will not be subject to mandatory testing. Testing for unvaccinated employees is required at least weekly if the employee is in the workplace, or within seven days of reporting to the workplace, if the employee is away for a week or more. An employee who fails to provide evidence of a test, or who tests positive, will not be allowed into the workplace. Under the ETS, employees must bear the burden of obtaining and paying for testing, although employers may choose to cover the cost. Employers also have discretion to implement more frequent testing. ETS compliant tests include “proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.” While over-the-counter tests are permitted, the employee may not both self-administer and self-assess the test.
Under the new ETS protocol, employees who test positive must report their results, regardless of vaccination status. Employees may only return to work after receiving a negative test result, isolating for two weeks as per CDC guidelines, or obtaining a recommendation from their health care provider that they be allowed to return. Employers do not have to provide paid leave for employees who test positive, but may choose to do so. All testing results must be recorded and maintained by employers. The test results are classified as employee medical records under OSHA’s Access to Medical Records standard, and must only be kept while the ETS remains in effect.
Employers are required to provide vaccination records and test results to any employee who makes a request. Employers must also provide a copy of their written vaccination or testing policies, along with all vaccination and testing records for their employees within four hours of receiving a request from OSHA. In a departure from previous OSHA requirements, employers must now report any work-related COVID-19 fatality within eight hours of the employer learning of the fatality. Likewise, all COVID-19 cases resulting in hospitalization must be reported to OSHA within 24 hours.
Employees who have not been fully vaccinated must wear a face covering inside, or while in a vehicle with another person for work purposes. Employers must allow employees to choose to wear a face covering, even if not required by the ETS. Employers are not required to pay for face coverings in the absence of collective bargaining agreements that provide otherwise. Face coverings are not required when the employee 1) is alone in a room with floor to ceiling walls and a closed door; 2) is wearing a respirator or face mask; 3) is eating or drinking; or 4) the employer demonstrates that wearing a face covering is impracticable or causes a greater hazard.
Backlash to the new measures is expected, with some employers expressing concern that vaccination deadlines will increase pressure on retail industries already suffering from worker shortages during the holiday season. Others have questioned the practicality of enforcing the ETS. Currently, the ETS is expected to be largely self-enforced, as there are insufficient OSHA inspectors to investigate the millions of covered workplaces for compliance. Instead, OSHA inspectors will focus on addressing employee complaints, and perform COVID-19 compliance inspections when they are already on-site. Employers who violate the ETS may face fines of $13,653 per violation, and up to ten times that amount for repeated infractions.
