Update: On Saturday, November 6, the U.S. Court of Appeals for the 5th Circuit issued an emergency stay of the ETS pending further legal briefing. The court referenced “grave statutory and constitutional issues” with the vaccine mandate. A “multi-circuit lottery” expected on Nov. 16 will assign the consolidated cases to one federal appeals court. OSHA is urging employers to move ahead with implementing the ETS
As expected, OSHA has issued a new COVID-19 Emergency Temporary Standard (ETS), which goes into effect on November 5, 2021. The ETS requires most private sector employers with 100 or more employees to implement and enforce policies requiring all employees who enter the workplace to be fully vaccinated or to submit to weekly COVID-19 testing.
The ETS gives employers 30 days to implement the following requirements:
- Establish compliant policies on vaccination.
- Determine vaccination status of each employee.
- Obtain acceptable proof of vaccination that complies with the ETS.
- Provide employees with certain information concerning their policies and procedures.
Employers have until January 4, 2022 to ensure that employees who are not fully vaccinated are tested at least weekly or within seven days prior to entering the workplace.
Here are the specific requirements of the ETS, along with answers to some of the most pressing questions employers are likely to have:
- Vaccination Policy: Employers must develop and communicate a vaccination policy. Employers may require all employees to be vaccinated, subject to their obligation to provide reasonable accommodations for disabilities and sincerely held religious beliefs. Alternatively, they may permit employees to choose between vaccination and weekly testing. If and to the extent the employer permits testing in lieu of vaccination, it must require unvaccinated employees to wear face coverings in the workplace.
- Counting Employees: All U.S. employees count toward the 100 employee threshold, regardless of vaccination status or where they work. Independent contractors do not count. Employees of a staffing agency count for the staffing agency only, and not for the employer with whom they are placed.
- Acquiring Proof of Vaccination: Employers are required to obtain and maintain proof of vaccination for fully vaccinated employees. Employers may obtain a physical copy of a vaccination record or may accept a digital copy of the record (e.g. photograph, scanned image, or PDF). Acceptable documentation includes:
- A record of immunization from a health care provider or pharmacy.
- A copy of the U.S. COVID-19 Vaccination Record Care.
- A copy of a medical record documenting the vaccination.
- A copy of immunization records from a public health, state, or tribal immunization information system.
- A copy of any other official documentation that provides details regarding the type of vaccine administered, date of administration, name of professional or clinic that administered the vaccine.
- Maintaining Proof of Vaccination: Employers must maintain a record of each employee’s vaccination status. The employer cannot simply view a record of vaccination; the employer must retain a copy of the documentation. The current ETS does not require employers to ask whether employees have received boosters, or to maintain documentation of receipt of a booster.
- Roster: Employers must maintain a roster of all employees that clearly identifies each employee’s vaccination status (unvaccinated, partially vaccinated, fully vaccinated). This roster is considered a confidential medical record.
- Paid Time for Vaccination: Employers must provide paid time for employees to be vaccinated during work hours, not to exceed four hours, and may not require employees to use earned time (e.g. paid time off, vacation, or sick time) to be vaccinated. Employers need not pay employees who choose to be vaccinated outside of work hours.
- Paid Time for Recovery from Side Effects: Employers are required to offer a reasonable amount of paid sick time to employees to recover from side effects experienced after a primary vaccination dose; OSHA has indicated that it presumes two days to be sufficiently reasonable. Employers may require employees to use accrued earned time if they miss work due to side effects of the vaccine. They may not, however, require employees to incur a negative earned time balance.
- Any employee who is unvaccinated for any reason—including for medical or religious reasons—must undergo weekly testing as long as the ETS is in effect or until they become fully vaccinated.
- Pool testing may be used to comply with the ETS.
- Employees who work completely remotely do not have to be vaccinated or regularly tested.
- Employees who come into the workplace irregularly do not need to be tested weekly, but must be tested within the seven day period before entering the workplace.
- An employee who tests positive for COVID-19 cannot be required to undergo a test for 90 days following their positive test or diagnosis.
- Employers must maintain a record of each test result required under the ETS. Test records constitute confidential medical records.
- The ETS does not require employers to cover the costs associated with COVID-19 testing, but federal or state wage and hour law may, depending on the cost of the test and the employee’s hourly rate or salary.
- Removal from the Workplace: Employers must require employees to notify them in the event they test positive for or are diagnosed with COVID-19.
- Any employee who tests positive must be removed from the workplace, whether or not they are fully vaccinated.
- The employee may return to the workplace when they receive a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing — in accordance with the CDC’s Isolation Guidance or upon recommendation from a licensed health care provider.
- The ETS does not require removal of an unvaccinated employee who has been exposed to COVID-19. The ETS also does not require employers to engage in contact tracing.
- Policies: Employers are required to develop and inform employees concerning the policies and procedures they develop to implement the ETS. These policies and procedures must include:
- The employer’s policy on vaccination—i.e. whether the employer requires vaccination of all employees not entitled to reasonable accommodation, or whether the employer permits employees to elect testing in lieu of being vaccinated.
- The process the employer will use to determine vaccination status.
- The time and pay/leave employees are entitled to for vaccination and side effects.
- The procedures employees must follow if they test positive for or are diagnosed with COVID-19.
- How employees can access their own vaccination or testing records, which employers are required to provide upon request.
- The policies and procedures in place for unvaccinated employees in the workplace, including testing procedures, required face coverings, etc.
- Other Information Employers Must Provide to Employees: In addition to sharing their policies and procedures, employers must provide employees with the document, “Key Things to Know About COVID-19 Vaccines,” OSHA’s Fact Sheet concerning the prohibition on discrimination or retaliation against employees who report work-related injuries or illnesses, and OSHA’s Fact Sheet concerning the penalties associated with knowingly supplying false statements or documentation to OSHA.
- Availability of Records: Employers must provide OSHA with the aggregate number of fully vaccinated employees at the workplace, together with the total number of employees, within four hours of a request by OSHA. Employers are required to provide this same information to an inquiring employee or employee representative by the end of the business day following their request.
Employers subject to this ETS should promptly review and revise their existing policies, or adopt new ones, to conform to the requirements described above. Whether to require vaccination or to permit employees to choose weekly testing is an important decision, and what is right for one organization may not be right for another. Relevant considerations will include the nature of the organization, risk of transmission, current vaccination status of workers, and the impact of requiring vaccination on the organization’s staffing or ability to attract employees.
Employers have 30 days (until December 5) to develop a communication strategy and procedures for obtaining information about vaccination status from employees and proof of vaccination from vaccinated employees.
The Pierce Atwood Employment Group will held a free webinar on Wednesday, November 10, from 9:00 – 10:15 am to provide additional information and answer your questions. The recording is now available.
For questions on the ETS, or for more information specific to your workplace, please contact Katy Rand or any member of Pierce Atwood’s Employment Practice Group.
(The ETS does not cover workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors. Nor does it cover workplaces where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare Emergency Temporary Standard.)