Employers with more than 100 employees have begun scrambling to comply with the Occupational Safety and Health Administration’s new emergency temporary standard (ETS) for COVID-19 vaccinations and testing. To learn more about five things larger employers should do to adhere to the new rules, read on.
How We Got Here
OSHA’s ETS, announced on November 5, says covered employers “must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”
On the same day, the Centers for Medicare & Medicaid Services (CMS) issued similar guidance for certain healthcare organizations and their employees. The coordinated publication of the two rules helps minimize confusion in situations where a large healthcare organization might have been covered by both sets of rules.
In establishing the ETS, OSHA determined COVID-19 presents a grave danger to unvaccinated workers because they are more likely to contract and transmit the virus in the workplace than vaccinated workers. According to the agency, the most effective and efficient control available against the pandemic is vaccination.
For those who remain unvaccinated, the ETS requires the additional protections of testing, face coverings, and the removal of infected employees from the workplace. OSHA has concluded larger employers can handle the administrative burdens. Smaller employers should be aware, though, the agency is continuing to evaluate whether similar rules could be imposed on them in the interest of protecting even more workers.
Head count. The ETS applies to a broad range of workplaces under OSHA’s jurisdiction with a “total of at least 100 employees firm- or corporate-wide at any time the [standard] is in effect.” You must look at your entire U.S. payroll, not just specific work locations, and include all full-time, part-time, remote workers, and other employees as of November 5 to decide whether you employ 100 or more employees:
- If you qualify, the ETS applies for as long as it is in effect.
- If you don’t have 100 employees at the start of the ETS but later increase your headcount above that number (even if only temporarily), then you will have to comply with the vaccine and testing requirement and stay in compliance for as long as they are in effect, regardless of whether the headcount later falls into double digits.
- Remote workers, employees who work only outside, temporary and seasonal workers, and part-time employees count towards company’s total number of employees.
- Vaccination status is not considered when counting the number of employees.
- Note that the ETS’s requirements would only apply to employees who work on site at least part time.
Exceptions. Even if an employer has 100 or more employees, the ETS vaccination and testing requirements don’t apply to:
- Workplaces covered by the Safer Federal Workforce Task Force (i.e., federal employers and federal contractors or subcontractors);
- Employers whose employees provide healthcare services or healthcare support services covered by the separate OSHA Healthcare ETS;
- Employees who don’t report to a workplace where other individuals such as coworkers or customers are present (e.g., remote workers or employees who work only outside); and
- Independent contractors.
In other words, you generally won’t be subject to more than one set of rules. Because of the different deadlines and opportunities to “opt out” of mandatory vaccinations under each set of rules, you should carefully evaluate which standards apply to your business. Also, if the ETS applies because of your business size, some employees (such as fully remote workers) may not need to be vaccinated or tested.
Testing costs. Employees who aren’t fully vaccinated must be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer). You don’t need to pay for testing unless required by state law or you choose to do so voluntarily.
In New Hampshire, employers are prohibited by state law from requiring employees to pay for “medical examinations,” which presumably includes testing costs. The ETS does allow for over-the-counter tests, provided they aren’t both self-administered and self-read.
Paid leave. Under the ETS, you must provide employees with “reasonable time,” including up to four hours of paid leave, to receive each vaccination dose (which can’t be deducted from any other paid leave time the individual has available).
Employees also must be granted reasonable time and paid sick leave to recover from each dose’s side effects. If an employee has accrued paid sick leave, you may require her to use the time to recover. She can’t be required to “go negative,” however, if time is needed to recover from the vaccine’s side effects. You would have to provide an additional, reasonable amount of paid leave in that case. OSHA considers two days of paid time off to recover after each dose to be reasonable.
Five First Steps for Employers
- Figure out which set of rules applies to your business. If the OSHA ETS applies, you’ll need to determine which employees have received their full course of “primary vaccination” (i.e., two doses of the Pfizer or Moderna vaccines plus two weeks or a single dose of the J&J vaccine plus two weeks). The current standard doesn’t require a booster shot. Be sure to collect proper proof of vaccination.
- Under the ETS, draft a policy requiring employees to (1) get vaccinated against COVID-19 or (2) undergo weekly testing and wear a face mask if they remain unvaccinated (whether because of a reasonable accommodation for medical or religious reasons or personal choice). You also can pick a hybrid model allowing some to be vaccinated and others to have a choice of testing and face mask protocols.
- The ETS sets two deadlines. By December 6 (30 days after the ETS was published), you must implement all requirements (except for testing) for employees who aren’t fully vaccinated (not including booster shots). In other words, you must draft policies, encourage the shots, collect vaccination information, and take other preparatory steps. By January 4, 2022, you must implement the testing protocols for employees who aren’t fully vaccinated.
- Provide employees with required information (in appropriate languages) including:
- Workplace policies being established to implement the ETS;
- Information about protections against retaliation and discrimination and penalties for knowingly supplying false statements or documentation;
- A copy of the document “Key Things to Know About COVID-19 Vaccines” from the U.S. Centers for Disease Control and Prevention (CDC); and
- On request, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees.
- Be ready to act if employees have a positive COVID-19 test, including removing them from work and planning for their return.
The OSHA rules were published in the Federal Register on November 5 and took effect immediately, but they are only “temporary” interim rules. To become permanent, they then become subject to a public comment period. OSHA has since extended the comment period for the ETS to January 19, 2022 to allow stakeholders more time to review the rules and collect needed data and information for comment.
As many predicted, lawsuits were filed immediately challenging the rules’ validity and the authority of OSHA and CMS to enforce them. As of November 12, a federal appeals court granted a motion to temporarily stay (halt) the OSHA rules. The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over the ETS challenges, while the DOL has filed a motion to lift the stay. At the moment, OSHA has suspended activities to implement and enforce the ETS pending future developments. The appeal is being expedited and may wind its way to the U.S. Supreme Court.
One dispute that needs to be resolved, in that litigation or otherwise, is the clear conflict between what several states have done (banning employers from requiring vaccines, face coverings, or testing) and OSHA’s categorical announcement the ETS preempts those types of state or local actions. Stay tuned!
Attorney Karen A. Whitley is a partner with Sheehan Phinney’s labor and employment law practice group in Manchester, New Hampshire. You can reach her at firstname.lastname@example.org. This article is excerpted from a longer analysis that appeared on the law firm’s website.