No More Shots in the Dark: OSHA Requires Employers to Mandate Vaccines or Testing/Masking in the Workplace
On November 4, 2021, OSHA issued its much anticipated Emergency Temporary Standard (ETS) requiring employers to implement policies mandating either COVID-19 vaccinations or weekly testing and masking of unvaccinated employees. It will be published in the Federal Register on November 5, 2021, and will be effective upon publication. Preparation and dissemination of the policy and all non-testing requirements must be in place by December 5, 2021. Employers must begin requiring weekly testing for employees no later than January 4, 2022. Below are key takeaways and next steps for employers.
WHAT EMPLOYERS ARE COVERED?
Employers with 100 or more employees in states where federal OSHA standards apply, including Texas, are covered. Employees are counted on a company-wide basis (as opposed to site-based counting). Part-time employees, remote workers, temporary and seasonal workers, employees who work exclusively outdoors, and minors are included in the count. Independent contractors, staffed workers, workers of other employers working at a joint work site (e.g., a construction site) are not included in the count.
WHAT EMPLOYERS ARE NOT COVERED?
The following employers are not covered by the ETS:
- Employers who employ fewer than 100 employees in total;
- Workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- Settings where employees provide healthcare services or healthcare support services, when subject to the requirements of the Healthcare ETS; and
- Public employers in states without OSHA-approved state plans.
WHAT IS REQUIRED?
On its most basic level, the ETS requires covered employers to implement a policy that either mandates COVID-19 vaccination for its employees or requires unvaccinated employees to submit to weekly testing and wear face coverings in the workplace. However, the ETS contains several detailed provisions outlining the necessary content of the policy and the manner in which the policy is implemented:
- Proof of Vaccination - Covered employers are required to secure and retain proof of vaccination. An employee is “fully vaccinated” two weeks after the last necessary dose. Any of the following are acceptable proof of vaccination: (1) vaccine card; (2) immunization records from a healthcare provider, pharmacy, or public health, state, or tribal immunization information system; or (3) any other official documentation that identifies the vaccine type, date(s) of administration, and name of the healthcare professional(s) or clinic site(s) that administered the vaccine.
Importantly, the policy states that if an employee cannot provide one of the foregoing forms of proof, the employer may (but does not have to) accept a signed and dated statement from the employee attesting that the employee is fully vaccinated and that they have lost and are otherwise unable to produce acceptable proof of vaccination. Note that the statement must contain the following: “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.” The statement should also include, to the best of the employee’s recollection, the type of vaccine, the date of receipt, and the name of healthcare provider(s) or clinic site(s) that administered the vaccine.
Along with copies of employees’ proof of vaccination, employers must maintain a roster of each employee’s vaccination status. The proof of vaccination and the roster must be treated as medical records and kept confidential.
- Paid Time Off - Covered employers are required to provide: (1) up to four hours of paid time off for workers to get vaccinated; and (2) a reasonable amount of paid sick leave for employees who have side effects from the vaccine. Employers may not require that employees use personal time, sick time, or other PTO already allowed by the employer to get vaccinated. Employers may require that an employee use personal time, sick time, or other PTO while recovering from side effects from the vaccine, provided, however, that an employer may not require the employee to “borrow” leave or accrue “negative” leave balances.
- Testing Option - Covered employers may opt to allow unvaccinated employees to submit to weekly testing. Employees that report to work at least once every seven days must provide a test result no later than the seventh day after the last test result was provided. Employees who do not report to work during a period of seven or more days must be tested within the seven days prior to entering the workplace and provide documentation of that test.
- Positive Tests - Employers must require that employees promptly notify them of a positive test, and employers must immediately remove any person who tests positive from the workplace. Employees who have tested positive may only return if: (1) the employee produces a negative Nucleic Acid Amplification Test (NAAT); (2) meets the return-to-work criteria in the CDC’s “Isolation Guidance”; or (3) receives a recommendation to return to work from a licensed healthcare provider. When an employee has received a positive test result, the employer cannot require additional testing until 90 days after the positive result. The ETS does not require employers to provide paid time off when an employee tests positive for COVID-19.
- Types of Testing - Any test approved by the Food & Drug Administration (FDA), including an Emergency Use Authorization (EUA), to detect current COVID-19 infection will comply with the ETS’s testing requirements. However, testing may not be both administered and read by the employee (i.e., home testing). The ETS provides examples of various tests that meet this standard, including those processed by a laboratory, proctored over-the-counter tests, point-of-care tests, and tests where the collection and processing is either done or observed by the employer.
- Cost of Testing - The ETS does not require employers to cover the cost of testing. Regardless of whether the employer determines that it or the employee is responsible for the cost, the Department of Health and Human Services has curated a list of low and no cost test providers. As a reminder, under the FLSA, time spent taking mandatory tests during normal working hours is compensable time.
- Masking - Covered employers must ensure that unvaccinated employees wear face coverings when indoors or in a car with another person. The only exemptions to wearing a face covering are: (1) when the employee is alone in a closed office; (2) for a limited period where the employee is eating or drinking; (3) for a limited period when necessary for identification for security purposes; and (4) if the employer can show that the use of a face covering is not feasible or will create a greater hazard (e.g., work requires use of employee’s uncovered mouth).
- Employee Exemptions - The ETS’s vaccine and testing requirements do not apply to employees who: (1) do not report to a workplace where coworkers or customers are present; (2) work from home; or (3) work exclusively outdoors. Additionally, employers should consider requests for reasonable accommodations relating to any of the ETS’s requirements for employees who cannot comply as a result of disability or sincerely held religious belief.
- Availability of Records Upon Request - Employers will have four hours to comply with an OSHA request for a copy of the written policy implemented to comply with the ETS and the total number of vaccinated employees in a workplace. Employers will have until the end of the next business day to provide OSHA all vaccination and testing records for a workplace. Additionally, the ETS allows employees to request copies of their own vaccination/testing records, and employees are entitled to information concerning the total number of employees in a workplace and the total number of vaccinated employees in the workplace. Employers must provide such information in response to an employee request no later than the end of the following business day after a request is made.
- OSHA Reporting - Employers were already under a general duty to report work-related COVID-19 diagnoses to OSHA. However, the ETS creates additional requirements for reporting work-related COVID-19 fatalities and hospitalizations. Employers must report fatalities within eight hours of learning of the fatality and in-patient hospitalizations within 24 hours of learning of the hospitalization.
- Employee Notice - Employers must provide notice to employees of the requirements of the ETS, as well as the employer’s policy implementing the ETS. Further, employers must specifically inform employees of the federal laws and regulations relating to providing false statements or documents, as well as those relating to anti-retaliation for reporting workplace illnesses. Finally, employers must provide employees with a copy of the CDC’s “Key Things to Know About COVID-19 Vaccines.”
WHAT HAPPENS IF AN EMPLOYER DOES NOT COMPLY?
OSHA is charged with enforcing the ETS. Violations of the ETS may be considered either “serious” or “willful.” Current maximum penalties for “serious” violations are $13,653 per violation. Current maximum penalties for “willful” violations are $136,532 per violation. It is anticipated that the ETS will be enforced through normal complaint and inspection processes.
WHAT ABOUT CONFLICTING STATE LAWS AND ORDERS?
The ETS expressly states that it supersedes any conflicting state or local law, expressly noting that it “will preempt inconsistent state and local requirements that ban or limit employers’ authority to require vaccination.” As such, Governor Abbott’s executive order prohibiting employers from requiring vaccination is preempted by the ETS and is unenforceable. Although it is widely expected that Governor Abbott will challenge the ETS, employers should comply with the ETS until such time as there is a successful challenge, if any.
WHAT SHOULD EMPLOYERS DO?
Covered employers should prepare policies that comply with the ETS and begin the collection and retention of employee vaccination records. Employers should also prepare for the logistical challenges associated with testing, including identifying how employees should be tested, to whom the testing records should be provided, and how testing records (along with proof of vaccination) will be securely and confidentially stored. Employers must also consider how employee time off necessary for vaccination, recovery, and testing should be administered. The ETS’s provisions are myriad and technical, and employers should consult counsel for specific questions concerning implementation.
 At this time, the ETS does not address the necessity for booster vaccination. We anticipate that this will be addressed in a future regulation.