On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. OSHA’s ETS was issued in response to President Biden’s COVID-19 Action Plan directing OSHA to develop an ETS “requir[ing] all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” The text of the rule was released on November 4, 2021 and will become effective upon being published in the Federal Register, which is anticipated as early as November 5, 2021. 
 
The ETS contains the following requirements for covered employers:

• Mandatory Vaccination or Weekly Testing. Establish, implement, and enforce a mandatory COVID-19 vaccination policy, or adopt the policy set forth in the ETS, which requires employees to either (1) be fully vaccinated, or (2) wear a face mask at the workplace (with certain limited exceptions) and take weekly COVID-19 tests, if the employee is in the workplace at least once a week. The ETS does not require employers to cover the cost of weekly testing for unvaccinated employees.
• PTO. Provide reasonable paid time off to employees to get the vaccine (up to four hours per Primary Vaccination (i.e. excluding booster shots)) and to recover from any side effects.
• Recordkeeping. Maintain records of each employee’s vaccination status and preserve proof of vaccination status.
• Employees Who Test Positive for COVID-19. Remove from the workplace any employees who test positive for COVID-19 or who receive a COVID-19 diagnosis, and allow such employees to return to the workplace only when certain requirements are met.

A more detailed discussion of the ETS follows.
  Covered Employers. The ETS covers all employers with 100 or more employees at any time the ETS is in effect, with certain limited exceptions.
 
Covered Employees. The ETS requirements do not apply to employees of covered employers (i) who do not report to a workplace where other individuals are present, (ii) while working from home, or (iii) who work exclusively outdoors.
 
Compliance Dates. Employers must comply with all ETS requirements within 30 days of the effective date with one exception—the testing requirement. Employers must comply with requirements relating to COVID-19 testing of employees who are not fully vaccinated by 60 days after the effective date of the ETS. If an employee has received primary vaccination by that date but has not yet completed the 2-week waiting period after the final dose, that employee does not have to be tested. “Primary Vaccination” means receiving both doses of a qualifying two-dose vaccine or one dose of a qualifying single-dose vaccine, with, if applicable, at least the minimal recommended interval between doses—it does not include boosters.
 
Mandatory Vaccination or Weekly Testing. Employers must either (1) enforce a mandatory vaccination policy, or (2) develop and enforce a written policy allowing employees to choose either to be fully vaccinated against COVID-19 or to provide proof of regular testing for COVID-19 and wear a face covering. An employer may develop a partial mandatory vaccination policy that applies only to certain employees (for example, only to employees who directly interact with customers); such policies are permitted so long as there is also a policy that employees not subject to the partial mandatory vaccination policy may choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.
 
Mandatory Vaccination. A mandatory vaccination policy must require all employees to be fully vaccinated, including vaccination of all new employees “as soon as practicable.” A mandatory vaccination policy should allow for exceptions for employees for medical or religious accommodations.

Weekly Testing. Employers must ensure that employees who are not fully vaccinated comply with the COVID-19 testing requirements outlined below. While employers are not required to pay for any cost associated with testing under the ETS, other laws, regulations, or collective bargaining agreements may require employers to cover testing costs.

• An employee who reports at least once every 7 days to a workplace where other individuals such as coworkers or customers are present must:
  • Be tested for COVID-19 at least once every 7 days; and
  • Provide documentation of the most recent COVID-19 test result to the employer at least every 7 days.
     
• An employee who does not report during a period of 7 or more days to a workplace where others are present must:
  • Be tested for COVID-19 within 7 days prior to returning to the workplace; and
  • Provide documentation of that test result to the employer upon their return to the workplace.
     
• To satisfy these requirements, the test must be a test for SARS-CoV-2 that is:
  • Cleared, approved, or authorized, including in an Emergency Use Authorization, by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
  • Administered in accordance with the authorized instructions; and
  • Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

The ETS sets forth additional requirements concerning COVID-19 testing of employees who are not fully vaccinated:

• Employee Failure to Provide Testing Documentation. If an employee does not provide documentation of a COVID-19 test result as required by the ETS, the employer must keep that employee removed from the workplace until the employee provides a test result.
• Positive COVID-19 Test or Diagnosis. Regardless of vaccination status, when an employee has received a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require the employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.
• Employer Recording of Testing. The employer must maintain a record of each test result provided by each employee under the ETS or obtained during tests conducted by the employer.

Recordkeeping. The ETS requires that employers determine and maintain records of each employee’s vaccination status. An employee is considered “fully vaccinated” two weeks after completing Primary Vaccination. Whether an employee has received a “booster” vaccination is not relevant to whether that employee is fully vaccinated within the meaning of the ETS. This information is considered employee medical records and must be treated as such, including being kept confidential and separate from personnel files. This information must be maintained and preserved while the ETS is in effect.
 
In determining vaccination status, employers must require each employee to provide “acceptable proof” of vaccination status, as set forth in the ETS. Acceptable proof includes but is not limited to:

• An immunization record from a health care provider or pharmacy;
• A copy of a COVID-19 Vaccination Record Card; or
• In instances where an employee cannot produce proof of vaccination, a signed and dated statement by the employee (A) attesting to their vaccination status (fully or partially vaccinated); (B) attesting that they have lost or are otherwise unable to produce proof of vaccination in the other manners set forth in the ETS; and (C) including the following language: “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.” In addition, the employee should, to the best of their recollection, include in the attestation the type of vaccination administered, date(s) of administration, and name of the health care professional(s) or clinic(s) that administered the vaccine(s).

If an employer determined an employee’s vaccination status before the effective date of the ETS and maintained records of that determination, such records are considered an acceptable proof of vaccination. Any employee who does not provide one of the acceptable forms of proof of vaccination status to the employer must be treated as not fully vaccinated under the ETS.
 
PTO. Employers are required to provide employees with time for vaccination and time for recovery:

• Time for Vaccination. The employer must provide (i) a reasonable amount of time to each employee for each Primary Vaccination dose, and (ii) up to four hours paid time, including travel time, at the employee’s regular rate of pay for this purpose.
• Time for Recovery. The employer must provide reasonable time and paid sick leave to recover from side effects experienced following each Primary Vaccination dose.

Face Coverings. Employers are required to ensure that employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except in limited circumstances set forth in the ETS, such as when an employee is alone in a room with floor to ceiling walls and a closed door. Employers must permit employees to wear a respirator instead of a face covering. The ETS does not require the employer to pay for any costs associated with face coverings; however, employer payment for face coverings may be required by other laws, regulations, or collective bargaining agreements.
 
Other Requirements. The ETS also contains the following additional requirements for covered employers:

• Information Provided to Employees. Inform each employee, in a language and at a literacy level the employee understands, about the requirements of the ETS, relevant employer policies and procedures, and the benefits of being vaccinated against COVID-19, amongst other things set forth in the ETS.
• Employer Reporting to OSHA. Report to OSHA (i) each work-related COVID-19 fatality within eight hours of the employer learning about the fatality, and (ii) each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
• Availability of Employee Vaccination and Testing Records. Make available records concerning employee COVID-19 vaccination and testing, upon request, as set forth by the ETS.

Lawsuits challenging the legal authority of the ETS have already been filed, and more are expected. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), anyone “adversely affected” by an ETS issued by OSHA may challenge it within 60 days in the appropriate federal appeals court. The OSH Act authorizes OSHA to issue an ETS and bypass the  period of public notice and comment only if the agency determines that: (a) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards; and (b) the emergency standard is necessary to protect employees from such danger. Notably, according to September 2021 Congressional Research Service report, “OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS promulgated in 1983. . . . [I]n the nine times OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case. Of the five cases that were not challenged or that were fully or partially upheld by the courts, OSHA issued a permanent standard either within the six months required by the statute or within several months of the six-month period and always within one year of the promulgation of the ETS.” According to the report, “Each of these cases . . . occurred before 1980, after which a combination of additional federal laws and court decisions added additional procedural requirements to the OSHA rulemaking process. OSHA did not attempt to extend the ETS’s expiration date in any of these cases.”
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.