OSHA Issues Emergency Temporary Standard (ETS) Requiring Mandatory COVID Vaccines or Weekly Testing for Employers with Over 100 Employees

Mark J. Chumley

OSHA issued its interim final rule today that goes into effect tomorrow, November 5, 2021. The ETS requires that covered employers begin complying by December 5, 2021 (other than testing) and sets a deadline to begin testing employees who are not fully vaccinated by January 4, 2022. The rule and related materials, including FAQs and policy templates, can be found here.

It includes the information and guidance outlined below. Employers should bear in mind that despite having a short time frame for compliance, the ETS will be subject to immediate legal challenges. This combination of urgency and uncertainty means that covered employers should make planning their approach to the ETS a high priority.

What employers are covered?

Employers with 100 or more employees are covered based on OSHA’s conclusion that such employers will have “sufficient administrative systems in place to comply quickly with the ETS.” The total employee count includes part-time, full-time, temporary (employed by the employer directly) and seasonal employees across an entire company, regardless of how many employees work in single locations. Temporary employees employed by a staffing agency and independent contractors do not count toward the 100 employee total. All employees count regardless of their current vaccination status. The rule includes some examples to help employers determine if they are covered:

• If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
• If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
• If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
• If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
• On a typical multi-employer worksite such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site. That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite.

What if employee numbers fluctuate above and below 100 employees?

If employers have fluctuating employee numbers, the determination of whether an employer is covered is based on the number of employees as of the effective date of the ETS (11/5/21). If the employer has 100+ employees as of the effective date, the ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date, they are not covered. However, if they subsequently hit the 100-threshold, the employer is covered and must comply for the duration the standard is in effect, even if their numbers subsequently decrease below 100.

How should companies count the employees of their related entities?

Two or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted together.

What employees are covered?

The ETS covers all employees of a covered employer with a few narrow exceptions. It does not apply to employees who do not report to a workplace where other individuals such as co-workers or customers are present, employees while they are working from home, or employees who work exclusively outdoors. With regard to working from home, employees who split time between the workplace and home are covered when they come to the workplace.

In order to qualify as work performed exclusively outdoors: (1) the employee must work outdoors on all days; (2) the employee must not routinely occupy vehicles with other employees as part of work duties; and (3) the employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively at the employee’s home.  The definition of “exclusively outdoors” does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.

What are covered employers required to do?

Adopt a policy: Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that adopt a policy allowing employees who are not fully vaccinated to elect to undergo weekly testing and wear a face covering at work. 

Employees for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs are not required to be vaccinated. However, they must comply with testing and face covering requirements (unless an accommodation to these requirements is legally required).

Determine vaccination status of employees: Employers are required 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. If employees do not possess their COVID-19 vaccination records, they should contact their vaccination provider to obtain a new copy or utilize their state health department’s immunization information system.

Paid Time Off: Employers must provide up to four (4) hours of paid time off to allow employees to receive each vaccination dose, and paid sick leave to recover from side effects experienced following each dose. Employees cannot be required to use any other accrued leave such as sick leave or vacation to offset the paid leave required to receive any vaccine dose(s). However, employers may require employees to use any accrued sick leave when recovering from side effects.

Employers cannot require an employee to go into the negative for paid sick leave if the employee does not have accrued paid sick leave when they need to recover from side effects. Employers may set a cap on the amount of paid sick leave available to employees to recover form side effects, but it must be reasonable. OSHA presumes 2 days of paid sick leave is compliant. Employers are not obligated to reimburse employees for transportation costs incurred to receive the vaccine. 

What are the requirements for employee testing?

Employers who elect to allow a testing option must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). 

An acceptable COVID-19 test is one that is (1) cleared, approved, or authorized, including in an Emergency Use Authorization, by the FDA to detect current infection with COVID-19; (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

The ETS also states that employers must (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.

Who pays for the tests?

Employers are not required to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements. Also, time spent getting tested by non-exempt employees is compensable.

What are the masking requirements for unvaccinated employees?

Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in limited circumstances (when an employee is alone in a room with floor to ceiling walls and a closed door; limited time while eating or drinking or for identification purposes in compliance with safety and security measures; when an employee is wearing a respirator or facemask; or where the use of face coverings are infeasible or create a greater hazard). 

Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).

What must covered employers communicate to their employees?

Employers must provide employees the following in a language and at a literacy level the employees understand:

1. information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
2. the CDC document “Key Things to Know About COVID-19 Vaccines”;
3. information about protections against retaliation and discrimination; and
4. information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

What are the reporting and recordkeeping requirements?

Employers are required 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.

Employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. This information must be made available by the end of the next business day after such a request.

Does the ETS address state laws that prohibit vaccine mandates or otherwise contradict its requirements?

The ETS states that it preempts any state or local requirements that ban or limit an employer from requiring vaccination, face coverings, or testing.

Please contact Mark Chumley or a member of KMK Law's Labor & Employment Group for assistance:

Cole D. Bond
Partner
513.579.6558
cbond@kmklaw.com

Kasey L. Bond
Partner
513.579.6497
kbond@kmklaw.com

Mark J. Chumley
Partner
513.579.6563
mchumley@kmklaw.com

John M. Milligan
Partner
513.579.6532
jmilligan@kmklaw.com

Caroline K. Musekamp
Of Counsel
513.579.6571
cmusekamp@kmklaw.com

Gregory J. Robinson
Associate
513.579.6584
grobinson@kmklaw.com