The White House has just released the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) meant to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Under the ETS, 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.
Under the ETS, employees of covered employers must receive the vaccine or be required to produce a negative test on “at least a weekly basis.” Employers “must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.”
Highlights from the ETS:
Explanation of Who is Included in the 100-Employee Threshold:
The applicability of the ETS is based on the size of an employer, in terms of number of employees, rather than on the type or number of workplaces. Part-time employees do count towards the company total, but independent contractors do not. For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under the ETS. The determination as to whether a particular employer is covered by the standard should be made separately from whether individual employees are covered by the standard’s requirements. For example,
- If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of the 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 the ETS because it has more than 100 employees. (NOTE: See the information below regarding mandatory vaccination not being applicable to some employees.)
- If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
January4 Deadline to Begin Weekly Testing of Unvaccinated Employees:
Employees of covered employers have until January 4 to become fully vaccinated (either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson). After that date, employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis. Therefore, employers with unvaccinated workers need to have a testing regime in place by January 4, unless the ETS is enjoined.
Paid Time Off to Get Vaccinated:
Covered employers must provide four hours of paid time off for employees to get vaccinated.
Unvaccinated Employees Must be Masked:
Unvaccinated employees of covered employers must wear a face mask while in the workplace.
Proof of Vaccination Status and Record Retention:
Covered employers must require employees to provide proof of vaccination status, which can take the form of immunization record, COVID-19 vaccination record card, or other official medical record documenting the vaccine. The employer must maintain a “record” of that vaccination and a roster of each employee’s vaccination status. There is no suggestion that the employer must copy the vaccination document presented by the employee to show proof of vaccination.
Mandatory Vaccination Not Applicable to Certain Employees:
Employers are not required to mandate vaccination by employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination (e.g., the vaccine is in conflict with other medical treatment received by the employee), or those legally entitled to a reasonable accommodation under the Americans with Disabilities Act or other federal civil rights law because the employee has a disability or sincerely-held religious belief, practice, or observance that conflicts with the vaccination requirement.
The vaccination requirement also does not apply to employees who do not report to a workplace where other individuals (such as coworkers or customers) are present, employees while they are working from home, or employees who work exclusively outdoors. An employee who switches back and forth from teleworking from home to working from the office is covered by the ETS.
ETS Not Applicable to Workplaces Subject to E.O. 14042:
The ETS does not apply to workplaces covered by Executive Order 14042, which requires federal contractors to have employees whose work relates to a federal contract be vaccinated against COVID-19. (This provision differs from the administration’s prior suggestion that employers subject to both the ETS and executive order would need to comply with both actions.)
The requirement to test unvaccinated employees weekly begins on January 4. Compliance with all other requirements of the ETS is required by December 5. It is WBA’s understanding that several state attorneys general and private entities are expected to file lawsuits in the coming days that seek to enjoin the ETS from taking effect.