CLIENT ALERT: OSHA’s Long-Awaited Vaccination or Test Rule for Private Sector Employers

The Occupational Safety and Health Administration (“OSHA”) has issued an Emergency Temporary Standard (“ETS”) imposing COVID-19 vaccine and testing requirements for employers with 100 or more employees. 

Employers who receive Medicare and Medicaid funds also should take note of more rigorous standards issued by the Centers for Medicare and Medicaid Services.

Requirements

To comply with the ETS, covered employers must either:

• Require that all employees be vaccinated against COVID-19 (except where an employee has a qualifying medical or religious exemption) or
• Require that unvaccinated employees submit to weekly COVID-19 testing and wear face coverings when indoors and when in a vehicle with another person for work purposes

The ETS provides that the alternative of weekly COVID-19 testing is an “option.”  Employers may choose to require vaccination (or valid exemption) for all employees rather than providing the weekly testing alternative.

OSHA has provided a template Mandatory Vaccination Policy and Vaccination or Testing and Face Covering Policy.

Covered Employers

The ETS applies to all employers with 100 or more total employees, unless the employer is subject to the Healthcare ETS issued by OSHA earlier this year (29 CFR § 1910.502) or the requirements of the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors.

When determining whether the 100-employee threshold is met, employers must count employees across all U.S. locations, even if some locations have fewer than 100 employees.  In addition, the following employees must be included:

• Employees who do not report to a physical workplace (e. remote or teleworkers)
• Employees vaccinated against COVID-19
• Part-time employees
• Employees working exclusively outdoors
• The following workers, however, do not count toward the total number of employees:
• Independent contractors
• Workers hired by a staffing agency (and not directly by the employer), even if they work at the employer’s location
• For franchisors, employees of the individual franchisees
• For franchisees, employees of the corporate franchisor

Notably, an employer is covered by the ETS if it has100 or more employees at any time after the effective date of the ETS.  For example, if today an employer only has 99 employees, the employer is not covered by the ETS.  However, if that employer hires an additional employee while the ETS is in effect, the employer becomes covered and must comply.  Likewise, an employer who has more than 100 employees at the effective date of the ETS will remain a covered employer even if its number of employees falls below 100. 

While employers with fewer than 100 total employees are not currently subject to the requirements of the ETS, similar requirements for small employers will likely be forthcoming. 

Covered Employees

The vaccine or test requirements apply to all employees of covered employers, except the following:

• Employees working 100% remotely
• Employees who work exclusively outdoors
• Employees who do not report to a workplace where any other individuals (including customers or coworkers) are present

Proof of Vaccination

Compliance with the ETS requires that employers obtain proof of vaccination.  Merely asking employees whether they are vaccinated is not sufficient.  Each of the following means of proof are acceptable:

• Record of immunization from a healthcare provider or pharmacy
• Copy of COVID-19 Vaccination Record Card
• Copy of medical records documenting the vaccination
• Copy of vaccination records from a public health, state, or tribal immunization system
• Copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name(s) of the healthcare professional(s) or clinic site(s) administering the vaccine(s)

If an employee is unable to produce any of the above means of proof, the employee may attest, under penalty of perjury, as to their current vaccination status and the fact that they have lost or are otherwise unable to produce proof of vaccination.  Proof of vaccination records are considered medical records, must be maintained confidentially, and must be retained by the employer for as long as the ETS is in effect. 

Acceptable Testing Methods

Any test that detects a current SARS-CoV-2 virus can be used for weekly testing so long as it is authorized by the U.S. Food and Drug Administration (including Emergency Use Authorization).  This includes over-the-counter tests, but tests which are both self-administered and self-read by the employee are not acceptable unless observed by the employer or an authorized telehealth proctor.  Employers are not required to offer on-site testing.  Test results are considered medical records, must be maintained confidentially, and must be retained by the employer for as long as the ETS is in effect.

Covering Costs of Vaccination and Testing

Employers must provide up to four hours of paid time to employees who receive vaccinations during work hours.  Employers also must provide paid sick leave, if needed, for employees to recover from any side effects of vaccination.  Employees may be required to use existing paid sick leave benefits.

The ETS does not require employers to shoulder the costs of weekly testing for unvaccinated employees.  However, some state laws may require employers to cover these costs.  Further, whether time spent testing is considered compensable time for non-exempt employees under the Fair Labor Standards Act remains an open question.  Until the Department of Labor’s Wage and Hour Division provides guidance on this issue, employers should consider erring on the side of caution by including time spent testing in a non-exempt employee’s work time for pay and overtime purposes. 

Removal for a Positive Test

Employees must notify the employer if they test positive, whether the employee is vaccinated or not.  An employee who tests positive must immediately be removed from the workplace, even if the employee is asymptomatic.  The ETS does not require employers to implement contact tracing after a positive test.  Once an employee has tested positive for COVID-19, the employee may return to work: following a negative COVID-19 test result, once the CDC’s isolation guidelines are satisfied, or when the employee receives a note from their doctor recommending a return to work.  Because of the likelihood for positive results after contracting COVID-19, even when someone is no longer contagious, the ETS requires employers to suspend the weekly testing requirement for 90 days after the date of an employee’s first positive test.

Unlike the Healthcare ETS issued in Summer 2021, which applies only to certain employers in the healthcare sector, this ETS does not require employers to provide any paid leave to employees who are removed from the workplace due to COVID-19 exposure.  However, other regulations or state laws may have such requirements.

Notice and Anti-Retaliation Provisions

Employers must provide employees with information regarding the requirements of the ETS and the policies implemented by the employer to comply with the ETS.  Additionally, employees must be provided with information about the safety and efficacy of vaccines and the benefits of COVID-19 vaccination, including, specifically, this CDC documentation. 

The ETS also prohibits employers from retaliating against employees who voice concerns about an employer’s compliance with COVID-19 related workplace regulations.  Employers are required to notify employees of these anti-retaliation protections and of the employees’ other rights in relation to the ETS.  A sample fact sheet may be found here.

Availability of Records

Upon request from an employee, employers must make available for examination and copying the employee’s vaccine documentation and any COVID-19 test results for that employee.  In addition, upon request by any employee or an employee representative, employers must provide the total number of fully vaccinated employees in a workplace, along with the total number of employees in the workplace.  Employers must respond to these requests by the end of the next business day following the day the request was made.

Further, employers must be prepared to respond within four business hours to requests for information from OSHA, and by the end of the next business day for OSHA records requests.

Compliance Deadlines

Covered employers must comply with the ETS, including establishing and implementing a written vaccine policy, by December 5, 2021.  Employers have until January 4, 2022, however, to implement weekly testing for unvaccinated employees.

The ETS already faces legal challenges, including a lawsuit filed today by 11 state Attorneys General.  Unless and until any legal challenges are successful, covered employers will be required to comply beginning on the above dates.

Conclusion

Detailed information from OSHA about the new ETS, including compliance assistance, fact sheets, notices, and sample policies, is available on OSHA’s website.  OSHA has also provided a Frequently Asked Questions page.

If you have questions about the ETS, please contact the Labor and Employment Team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, Jennifer Penberthy Buckley or Clarissa Chenoweth-Shook).

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