On November 5, 2021, the Occupational Health and Safety Administration (“OSHA”) published its Emergency Temporary Standard (“ETS”), 86 CFR 61402, which requires employers with a total of more than 100 employees, federal contractors and some health care providers to develop, implement and enforce a mandatory COVID-19 vaccination policy or choose to subject employees who decline the vaccine to weekly testing. Notably, healthcare employees remain subject to the Healthcare ETS, which was issued in June 2021.

The ETS contains the following seminal provisions:

• When counting employees to determine whether the 100 employee requirement is met, part-time and full-time employees count, but independent contractors do not.
• The vaccine mandate does not apply to employees who do not report to a workplace where other individuals are present, work completely remotely, or work exclusively outdoors.
• The deadline for employees to receive their final vaccine is January 4, 2022. Alternatively, employers may (but are not required to) permit employees who opt out of the vaccine requirement to undergo weekly COVID-19 testing (for those who are in the office at least once a week) and wear a face mask while indoors and when occupying a vehicle with another person for work purposes. Unvaccinated employees who report to work after a period of seven (7) or more days away from the workplace must also undergo testing within seven (7) days prior to returning to the workplace. The ETS requires employers to maintain records of such test results.
• Employers that choose to adopt the weekly testing option may not require an employee who tests positive for COVID-19 or has been diagnosed with COVID-19 by a licensed healthcare provider to undergo COVID-19 testing for ninety (90) days following the date of their positive test or diagnosis.
• The ETS does not require employers to pay for testing, subject to the requirements of other laws, regulations or collective bargaining agreements. Employers are also permitted to voluntarily assume testing costs.
• The ETS requires employers to determine the vaccination status of each employee and secure proof of vaccination from those employees who are partially or fully vaccinated. Significantly, employers must maintain a roster of each employee’s vaccination status indicating whether each employee is fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.
• Acceptable forms of vaccination proof include: (1) the record of immunization from a health care provider or pharmacy; (2) a copy of the U.S. COVID-19 Vaccination Record Card; (3) a copy of medical records documenting the vaccination; (4) a copy of immunization records from a public health, state, or tribal immunization information system; or (5) a copy of another 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). If an employee is unable to produce the above forms of proof of vaccination, the employer may accept a signed attestation that contains the required language set forth by the ETS, which includes, but is not limited to, a statement that false information may be subject to criminal penalties.
• Employers must develop and distribute: (1) a written COVID-19 vaccination policy; (2) the CDC document, “Key Things to Know About COVID-19 Vaccines”; (3) information about protection against discrimination and retaliation; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• Employers must allow employees up to four (4) hours of paid time off to obtain a COVID-19 vaccine, which is separate and apart from any leave that the employee has already accrued, including sick or vacation leave.
• Further, employers must also provide “reasonable time” and paid sick leave to allow employees to recover from any adverse effects of the vaccine. The ETS does not define “reasonable time” but the FAQs state that if an employer makes available up to two (2) days of paid sick leave per vaccination dose, the employer would generally be in compliance with this ETS requirement. Unlike the required paid time off to receive a COVID-19 vaccine described above, employees may be required to use any accrued sick leave for recovery from vaccination side effects.
• Employers must require all employees to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19. Regardless of vaccination status, these employees must be immediately removed from the workplace and cannot return until the return to work criteria are met.
• Employers must report work-related COVID-19 fatalities within eight (8) hours of learning about them and work-related inpatient hospitalizations within twenty-four (24) hours of learning about the hospitalization to OSHA.
• Employers must allow employees access to their COVID-19 vaccine documentation or test records by the end of the next business day after the request. Additionally, upon request by an employee or employee representative, employers must make available by the end of the next business day after the request the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at the workplace.

The above ETS provisions, other than testing, are effective December 5, 2021. The testing requirement is effective January 4, 2022.

OSHA has indicated that the Agency’s intention is that the ETS will preempt any State or local laws that ban vaccinations, testing, or the wearing of a face covering, except under the authority of an OSHA-approved State Plan.

Employers who fail to comply with the ETS may be subject to OSHA penalties, including heightened penalties for willful or repeated violations of up to $136,532 per violation.

On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals issued an order temporarily staying implementation of the ETS.  The implementation of the ETS thus remains in doubt and employers should continue to follow the status of the law to determine their rights and obligations.

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