On November 4, 2021, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) requiring employers with over 100 employees to require employees to be fully vaccinated or produce a negative test result on at least a weekly basis before coming to work. States with an OSHA-approved State Plan must either amend their standards to be identical to, or at least as effective as the new standard. Lawsuits challenging the legal authority of the ETS have already been filed, but at this time employers should not postpone compliance efforts based on these lawsuits.
To help employers who are required to comply, we have set forth some common questions and answers related to the ETS. Please keep in mind that the ETS was only recently published and information on this topic is constantly developing and changing.
Q: What is the first step with respect to compliance?
A: Each employer needs to determine whether it is Covered Employer (defined below). Employers should then evaluate the best approach to implementation for their workforce and business needs. Some employers may not logistically be able to oversee the option of weekly testing in lieu of vaccination. Covered Employers must implement a mandatory COVID-19 vaccination policy addressing the standards by December 5, 2021.
Q: Which employees does an employer count to determine the 100-employee threshold?
A: The ETS applies to employers with a total of 100 or more employees at any time the ETS is in effect (“Covered Employer”). Employers must count both part-time and full-time employees, as well as those employees who work from home or never report to an office location. Employers with multi-employer locations must count all employees, regardless of location, to determine coverage. Employers should not count leased workers who are employed by a staffing agency towards the 100-employee threshold.
Q: Are there any exemptions to coverage for employers under the ETS?
A: There are two exemptions. The standards do not apply to workplaces that are covered by the federal contractor requirement, or employers covered by the vaccination directive from the Centers for Medicare & Medicaid Services for health care workers at facilities that participate in Medicare and Medicaid programs. However, if an employer who meets the employee threshold and is covered by the health care worker directive has employees who are not covered by the directive, the standards will apply to employees not covered by the health care worker directive.
Q: Are there any exemptions to the ETS for employees?
A: Yes. Even if the ETS applies to a particular employer, the standards do not apply to employees: (i) who do not report to a workplace where other individuals such as coworkers or customers are present; (ii) who are working from home; or (iii) who work exclusively outdoors (allowing for de minimis use of indoor spaces where other individuals may be present). The exemption for employees working from home only applies if the employee works exclusively from home. An employee who switches back and forth from teleworking to working in a setting where others are present will be subject to the standards. Even if an employee works exclusively from home, they must be counted by employers to determine the 100-employee threshold.
Q: How do Covered Employers determine whether an employee is fully vaccinated?
A: Employers must require and maintain acceptable proof of each employee’s vaccination status. An employer may obtain a physical copy of a vaccination record or may allow employees to provide a digital copy of an acceptable record. The standards do not permit an employee to merely show the employer their vaccination status. The employer must retain either a physical or digital copy of the documentation.
Q: Are Covered Employers required to provide and pay for testing for employees who are not fully vaccinated, if they allow this alternative?
A: No, except where a collective bargaining agreement or other state law requires. Employers can require employees to arrange for, and pay for, testing themselves. For some employees, employers need to be cautious because if the cost of testing brings the employee’s pay below minimum wage, the employer may run afoul of the Fair Labor Standards Act. Also keep in mind testing may create hurdles to attendance. If your business relies on a dedicated workforce to be present and working at specific times testing may create a disruption to the workplace.
Q: What if an employee who is not vaccinated does not provide testing documentation?
A: If an employee does not provide timely documentation of a COVID-19 test result, the employer must prohibit that employee from entering the workplace until they provide a negative test result within the required timeframe.
Q: Must Covered Employers maintain a copy of each COVID-19 test result for each of their unvaccinated employees?
A: Yes. Covered Employers must maintain a record of each test result required to be provided by each employee pursuant to this ETS.
Q: Must Covered Employers provide paid time off for employees to be vaccinated?
A: With some exceptions, Covered Employers are required to provide employees up to four hours of paid time off to receive each primary vaccination dose as well as paid sick leave to each employee for potential side effects experienced following vaccination.
Q: Does the ETS address face coverings?
A: Yes. Covered Employers must require non-vaccinated employees to wear CDC-approved face coverings when indoors or when in a vehicle with another person for work purposes, with limited exceptions.
Q: Are there OSHA reporting requirements created by the ETS?
A: Covered Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning.
Q: What is the timeline for compliance?
A: All requirements, other than the testing for unvaccinated employees, are effective December 5, 2021. The testing requirement for unvaccinated employees goes into effect January 4, 2022.
Q: What are the penalties for non-compliance?
A: Covered Employers that fail to comply with the rule may be subject to OSHA penalties. As of January 2022, the maximum penalty amounts under OSHA are $13,653 per violation; $13,653 per day for a failure to abate, and $136,532 per violation for a willful or repeated violation.