After weeks of waiting, we finally have the new emergency temporary standard (“ETS”) from the Occupational Safety and Health Administration, pertaining to workforce vaccination requirements and other COVID-19- related safety protocols. Our Labor and Employment attorneys continue to pour over the nearly 500-page ETS, as well as statements today from the White House, in order to provide guidance to our clients. However, here are the initial takeaways for employers:
- Which employers are covered? The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction. Within these industries, all employers that have a total of at least 100 employees – firm or corporate-wide, at any time the ETS is in effect, are covered. Thus, an employer will be covered at locations or work sites with fewer than 100 employees, if the company has 100 or more employees company-wide. While it is clear that all private employers who meet this threshold will be covered (subject to the exceptions listed below), the situation is less clear for public employers, as OSHA technically does not have jurisdiction over public employers; however, many states have state versions of OSHA laws and those state agencies may enact requirements similar to the federal ETS. Public employers need to seek state-specific advice on this issue.
- Which employers are not covered? This standard does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502).
- Which employees are covered? The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers, are present, employees while they are working from home, or employees who work exclusively outdoors. However, employees who are teleworking or working outdoors will be covered if any part of their job requires being present in a workplace where other individuals are present. Also, it appears that employees working exclusively remotely or outdoors, even if they would not be individually subject to the ETS’s requirements, must be counted as part of the employer’s workforce when determining if the employer has 100 or more employees.
- What is required? The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. In other words, employers must require full vaccination or weekly testing and masking for all personnel (other than those who work exclusively remotely or outdoors). The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. An employer may choose to treat different locations or different job groups differently, with respect to requiring vaccination versus weekly testing/masking.
- Time off for vaccination. The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose. The ETS does not require employers to provide paid time off for employees quarantined based on a COVID-19 diagnosis or COVID-19 exposure.
- Who pays for testing? Employees may be required to arrange for their own testing and employers are not obligated to arrange for testing or pay for costs associated with testing. However, the ETS does not address whether time spent taking a mandatory COVID-19 test is compensable work time under the Fair Labor Standards Act. The United States Department of Labor is expected to provide updated guidance on that issue shortly.
- Accommodations. Employers must make reasonable accommodations based on an employee’s ADA-covered medical conditions and bonafide religious beliefs.
- Employee notification to the employer of a positive COVID-19 test and removal. The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.
- Reporting COVID-19 fatalities and hospitalizations to OSHA. The ETS requires employers to 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
- Conflicting state and local laws. The ETS expressly states that it is intended to preempt conflicting state and local law. Many states, such as Tennessee, have indeed enacted laws that conflict with all or part of the federal ETS, and other such laws may be forthcoming. It is quite likely that these constitutional issues will be the subject of forthcoming lawsuits. Employers with workforces in jurisdictions with contradictory laws should seek state-specific advice on how to navigate the situation.
- When does this go into effect? The ETS is effective immediately upon publication in the Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:
- 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose;
- 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination. Thus employers who have not done so should prepare compliant written policies and explanatory announcements to their workforce; for employers who intend to enact vaccine mandates, but have not yet collected vaccination status from employees, this should be a priority.
- Will the ETS be challenged? Probably. The attorneys general for 24 states have already presented a letter to the White House expressing their intent to challenge the ETS in court. The outcome of such challenges is uncertain, but it is possible that the ETS will enjoin locally in some jurisdictions, or even nationally. This is a fluid situation. Based on the short compliance timelines presented, employers should take steps to comply with the ETS, while keeping a close eye on any pending legal challenges.
- Summary of the ETS. OSHA has published a summary of the ETS, here: https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf
Our attorneys will continue to review the ETS and all developments surrounding these issues. Employers with questions about how the ETS impacts their operations should contact experienced employment law attorneys to help them navigate these tricky issues.