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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released the anxiously awaited Emergency Temporary Standard (ETS) requiring covered employers to implement a vaccine mandate and/or weekly testing program. 

What is an Emergency Temporary Standard?

Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.

Who is covered by the ETS?

All private employers with 100 or more employees are subject to ETS, unless they fall within one of the specifically identified exceptions. The exceptions include federal contractors covered by the federal contractor mandate and healthcare employers covered by the CMS mandate.

To determine coverage, employers must count all U.S. employees, including part-time and temporary workers. True independent contractors are not included in the calculation. Traditional franchisee/franchisor relationships are separate entities for determining coverage. Employers who do not meet the 100-employee threshold on their own must carefully analyze potential coverage under a joint employer or related entity theory. If the 100-employee threshold is met, it applies at all locations for the employer regardless of the number of employees in a particular location.

What does the ETS require?

In sum, the ETS requires that covered employers either implement a vaccine mandate for covered employees or require covered employees who are not vaccinated to submit weekly tests, socially distance and wear a face covering.

Specifically, covered employers must, at minimum, develop and implement a written policy covering the following:

  • Requirements for COVID-19 vaccination and/or weekly testing.
  • Exemptions from the vaccination and/or testing requirements (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs).
  • Documentation required to prove an employee’s vaccination status and method of collection.
  • Up to four hours of paid time off for employees to receive each dose of the vaccine and “reasonable time and paid sick leave” to recover from any side effects of the vaccine (notably, employers can require an employee to use accrued paid time off concurrently with any time required to recover from side effects of the vaccine but cannot require an employee to use accrued paid time off to get the vaccine).
  • Testing procedures and requirements (including who will pay for the test, the timing of the test, and the notification and removal requirements in the event of a positive test).
  • Requirement that unvaccinated employees wear an approved face covering in the workplace.
  • Information regarding COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated as set forth in the CDC’s “Key Things to Know About COVID-19 Vaccines” document.
  • A representation that the employer will not discharge or discriminate against an employee for reporting work-related injuries or illness, exercising rights under, or as a result of actions that are required by, the ETS or filing an occupational safety or health complaint, reporting work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act.

Employers who wish to provide a weekly testing option as part of their compliance program must include a COVID-19 test that is:

  • Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test).
  • Administered in accordance with the authorized instructions.
  • Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

Are remote employees subject to the vaccine/testing requirements?

The ETS requirements do not apply to fully remote employees who do not come into contact with co-workers or customers. Should an unvaccinated remote employee need to return to the workplace or otherwise come into contact with co-workers or customers, the employee will be required to produce a negative test within seven days prior to their return. 

Must employer obtain proof of vaccination?

The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. The following list includes the acceptable documentation for proof of vaccination:

  • The record of immunization from a healthcare provider or pharmacy.
  • A copy of the U.S. COVID-19 Vaccination Record Card.
  • A copy of medical records 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 contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s).

Does the employer have to pay for weekly testing?

Employers may require unvaccinated employees to pay the cost of their weekly testing, unless state or local laws, or collective bargaining agreements, require otherwise.

What about inconsistent state law or local laws?

The standards purport to pre-empt “inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.”

What is the consequence for violating the ETS?

Violations of the standards could result in fines of $13,653 per violation, with willful violations resulting in fines of $136,532 per violation. This enforcement could be per employer or per employee, depending on facts and circumstances.

When does the ETS take effect?

The ETS became effective November 5, 2021 and will be in effect for six months, until May 5, 2022, unless a permanent regulation superseding the ETS is adopted. Notably, the deadline for employees to be fully vaccinated or submit to weekly testing is January 4, 2022.

However, in 22 states with their own mini-OSHA agencies, the standards will not be effective for 30 days, during which those states are allowed to determine if they will apply the federal standards or implement their own more protective standards. In the states with no mini-OSHA agency (such as Pennsylvania, Texas and Florida), the standards will not apply to public sector employers.

What does the Fifth Circuit’s Order Enjoining the ETS mean?

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted an emergency motion to stay the ETS, finding cause to believe that there are “grave statutory and constitutional issues with the mandate.” The government has until 5:00 p.m. on November 8, 2021 to respond to the motion, and the petitioners are then required to file a reply brief by 5:00 p.m. on November 9, 2021. Thereafter, the Fifth Circuit will decide whether to permanently enjoin the implementation of the ETS. Any appeals to the order issued by the Fifth Circuit will need to be resolved by the United States Supreme Court.

Key Takeaways:

Even with the current stay, employers should be prepared to comply with the ETS in the event that it survives the current challenges, especially because of the tight timeline for compliance. Employers should work with counsel in considering their options for compliance with the ETS so that they can timely develop and implement a compliant program if need be.