On September 9, 2021, President Biden announced that the Occupational Safety and Health Administration (“OSHA”) would develop a COVID-19 emergency temporary standard (“ETS”) mandating COVID-19 vaccinations or weekly testing for private employers with 100 or more employees. OSHA published the ETS on November 5, 2021, and the following day, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay prohibiting implementation of the ETS in response to a petition by various states, employers, religious groups, and individual citizens. After expedited briefing, the Fifth Circuit issued an order on November 12, 2021, enjoining enforcement of the ETS based on multiple grounds.

Because of the multitude of challenges to the ETS pending throughout the country, all petitions for review were transferred and consolidated to the U.S. Court of Appeals for the Sixth Circuit as of November 16, 2021. The Sixth Circuit is generally considered a conservative court, with the majority of its judges appointed by Republican presidents, which suggests that it may decide the challenges in a manner similar to the Fifth Circuit. The Sixth Circuit’s ruling will then likely be subject to review before the U.S. Supreme Court.

Pending the Sixth Circuit’s decision and potential Supreme Court review, the ETS is stayed. OSHA issued a release stating it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Nonetheless, employers should familiarize themselves with the ETS requirements in case the stay is lifted and the ETS ultimately becomes enforceable.

1. Employers And Employees Covered By The ETS

The ETS applies to all private employers who are under OSHA’s jurisdiction and have 100 or more employees nationwide at any time the ETS is in effect. The count is company-wide and includes union and part-time employees, but does not include independent contractors. Additionally, if an employer’s workplace is covered under the Biden Administration’s Executive Order governing federal contractors and subcontractors, or if an employer’s employees work in certain healthcare or healthcare support settings covered by the federal Healthcare Emergency Temporary Standard, those regulations and requirements will apply instead. Employees of providers and suppliers participating in Medicare and Medicaid programs also may be required to comply with the vaccination mandate under the Centers for Medicare & Medicaid Services (“CMS”) Omnibus Interim Final Rule, which is complementary to the ETS.

Although the ETS may apply to an employer, its requirements may not apply to certain employees. The ETS does not apply to employees who work exclusively outdoors, work from home, or do not report to a workplace where co-workers or customers are present (i.e., the employee works entirely alone). Employees who spend any time on location working with others, including co-workers, clients, customers, or the public, are covered by the new ETS, even if they do not work at the employer’s worksite.

2. Employers In California And Other States With A State Plan

Employers in states like California that have an OSHA-approved State Plan are governed by the State Plan’s occupational safety and health standards and regulations. State Plans are required to adopt and enforce standards that are “at least as effective” as, or stricter than, OSHA’s requirements. OSHA initially gave State Plans 15 days to notify OSHA whether the State Plan will adopt the ETS or amend any COVID-19 emergency temporary standards currently in place to be identical or at least as effective as the requirements in the ETS. OSHA also initially required the State Plan’s standard to be published within 30 days of publication of the ETS and to remain in effect for the duration of the federal ETS. However, because OSHA has suspended implementation and enforcement of the ETS pending the current appeals of the ETS and therefore numerous State Plans have paused their adoption of the ETS.

California’s OSHA-approved State Plan, commonly known as “Cal/OSHA,” has already had a COVID-19 emergency temporary standard in place since November 2020. Although some of the requirements under the federal ETS are already a requirement under Cal/OSHA’s ETS (e.g., requiring unvaccinated employees to wear face coverings indoors and in vehicles with others), others are new. Cal/OSHA initially announced that it intended to adopt the federal ETS “as-is.” On November 18, 2021, however, Cal/OSHA’s Standards Board announced that it would not consider adoption of the federal ETS until the Sixth Circuit resolves the ongoing litigation over the ETS.

3. Requirement To Implement A COVID-19 Vaccination Or Testing Policy

The ETS requires employers to develop and implement a written policy that mandates that all covered employees be fully vaccinated against COVID-19 (unless an employee qualifies for a medical or religious exemption). Alternatively, employers who do not adopt a mandatory vaccination policy must implement a policy that allows employees to choose between showing proof of their full vaccination status or providing weekly test results and wearing face coverings indoors. Under the ETS, employees are considered fully vaccinated if two weeks have passed since the employee completed “primary” vaccination of a vaccine approved by the U.S. Food and Drug Administration (“FDA”) or World Health Organization (“WHO”). The ETS requires employers to provide employees with up to four hours of paid time at their regular rate of pay to receive each dose of the vaccine, and paid sick leave to recover from any side effects of the vaccine.

An employer’s written policy also must require employees to notify the employer upon learning that the employee tested positive for or was diagnosed with COVID-19, regardless of vaccination status. Employers must remove any COVID-19 positive employees from the workplace immediately. Although the ETS does not require employers to provide paid leave for removed employees, employers still must follow any applicable state/local wage and hour obligations or COVID-19 supplemental paid sick leave laws in effect. In order to return to work, an employee must: (1) receive a negative result on a COVID-19 nucleic acid amplification test (NAAT); (2) satisfy the return-to-work criteria under the CDC’s “Isolation Guidance;” or (3) be cleared to return to work by a licensed healthcare provider. Employers must report each work-related COVID-19 death to OSHA or the State Plan within eight hours of the employer learning of the employee’s death and must report each work-related COVID-19 in-patient hospitalization to OSHA or the State Plan within 24 hours of learning about the hospitalization.

a. Proof Of Vaccination Status

To comply with the ETS, employers must determine the vaccination status of each employee. The ETS requires employers to maintain a roster of each employee’s vaccination status, including whether the employee is fully, partially, or not vaccinated, and whether the employee is not vaccinated due to a medical or religious exemption. Employers also must maintain proof of each employee’s vaccination status, which can take the form of: (1) an immunization record; (2) a copy of the COVID-19 Vaccination Record Card; (3) a copy of medical records documenting vaccination; (4) any other official documentation that reflects the vaccine administered, the date of administration, and the name of the healthcare professional/site that administered the vaccine; or (5) a signed attestation from the employee which may be subject to criminal penalties (under Section 17(g) of the OSH Act for knowingly supplying false statements or documentation). Employers who previously collected vaccination records or attestations prior to the effective date of the ETS do not need to re-verify or collect new attestations. The roster and vaccination records must be maintained for as long as the ETS remains in effect and should be maintained as confidential employee medical records in accordance with federal and state laws.

b. Proof Of Weekly Testing For Unvaccinated Employees

Employees who do not provide proof of full vaccination must provide proof of COVID-19 testing once every seven days. Importantly, any employee who does not provide proof of testing must be excluded from the workplace until the employee provides a negative test result. Employees working remotely who are away from the workplace for a period of seven or more days must be tested within seven days prior to returning to the workplace and provide proof of a negative test result upon returning to the workplace. Employers must maintain a record of each test result provided by the employee or obtained during tests conducted by the employer. Records of test results must be kept for as long as the ETS is in effect and maintained as confidential employee medical records.

Tests used for compliance with the ETS must be cleared, approved, or authorized by the FDA. Tests may not be self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Although the ETS does not require employers to pay for any costs associated with weekly testing, the ETS recognizes that employers may be required to cover these costs by other laws, regulations, or collective bargaining agreements. States with State Plans like California and/or states with laws requiring employers to reimburse employees for business-related expenses (which also includes California) may ultimately decide that employers must pay for the costs of testing under the ETS.

c. Face Coverings For Unvaccinated Employees

Employees who do not provide proof of full vaccination must wear a face covering when indoors and when occupying a vehicle for work with another person. Exceptions to this requirement include:

• When an employee is alone in a room with floor to ceiling walls and a closed door;

• For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;

• When an employee is wearing a respirator or facemask; and

• Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would exclude compliance.

The ETS also expressly prohibits employers from preventing any employee from voluntarily wearing a face covering or facemask unless the employer can demonstrate wearing such covering would create a hazard of serious injury or death. Like testing costs, the ETS does not require employers to cover the cost of face coverings, but the ETS acknowledges that payment may be required by other laws, regulations, or collective bargaining agreements.

d. Addressing Medical And Religious Exemptions

Employers who elect to require mandatory vaccination cannot require vaccination for employees:

• Who are medically contraindicated for a COVID-19 vaccine;

• For whom medical necessity requires a delay in vaccination; or

• Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

Employees who will be present in the workplace and who are granted a reasonable accommodation or otherwise exempted from the vaccination requirement, however, are still subject to the testing and face covering requirements for unvaccinated employees. If the testing and/or face covering requirements also conflict with the employee’s disability or religion, the employer will need to engage in the interactive process with the employee to determine if a potential reasonable accommodation that does not pose an undue burden is available. The ETS refers employers to the EEOC’s guidance for determining when reasonable accommodations may be needed due to an employee’s disability or religion, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

e. Employee And OSHA Access To Vaccination And Test Results

Employers must make available, for examination and copying, the individual proof of COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and to anyone with written authorized consent from the employee. Additionally, an employee/employee representative may request the total number of fully vaccinated employees at a workplace and the total number of employees at that workplace. In both instances, employers must comply with the request by the end of the next business day after the request. If requested by OSHA, employers must provide a copy of the employer’s written policy within four hours and all other records required by the ETS by the next business day.

4. Additional Requirements

In addition to implementing a written policy, employers must inform each employee, in a language and at a literacy level the employee understands, about the following:

• The ETS requirements and the policies and procedures implemented by the employer to comply with those requirements;

• COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing employees with the CDC document entitled, “Key Things to Know About COVID-19 Vaccines;”

• The employer cannot discharge or otherwise discriminate or retaliate against an employee for reporting a work-related injury or illness; and

There are criminal penalties associated with knowingly supplying false statements or documentation related to an employee’s proof of vaccination or test result.

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