What is an emergency temporary standard (ETS)?
Under the Occupational Safety and Health Act, OSHA can issue and immediately enforce an emergency temporary standard (ETS) if the agency determines that (1) employees are subject to “grave danger” from exposure, substances or agents determined to be toxic or physically harmful, and (2) the ETS is necessary to protect workers from such danger. Like previous ETSs, OSHA did not go through the typical notice-and-comment process for permanent rulemakings when issuing its COVID-19 vaccine ETS.
What are the compliance deadlines in the ETS?
There is no compliance deadline currently in effect. The Supreme Court has reimposed a nationwide preventing OSHA from enforcing the ETS while the Sixth Circuit Court of Appeals decides the cases consolidated before it over whether the ETS is a valid exercise of OSHA’s authority.
Keep in mind that OSHA’s ETS is allowed by law to remain in place for only six months (until May 5, 2022), after which it must be replaced by a permanent standard. OSHA has been soliciting public comments on a permanent standard, and it could decide to continue pursuing a vaccinate-or-test requirement through the formal notice-and-comment rulemaking process. It is unclear whether the Sixth Circuit will issue a decision before the May 5 expiration of the ETS.
What are the requirements of the COVID-19 vaccine ETS?
Generally, OSHA’s ETS requires private employers with more than 100 employees (company or firm-wide) to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring covered employees to choose to either be fully vaccinated against COVID-19 or undergo at least weekly COVID-19 testing and wear a face covering at work. The ETS also requires employers to provide paid time to employees to get vaccinated and to allow paid leave to recover from any side effects from each dose of the vaccine.
The ETS also requires employers to:
- provide certain information to employees on vaccines and on the ETS’s requirements;
- obtain and maintain records and a roster of employee vaccination status; and
- comply with certain notice requirements when there is a positive COVID-19 case and report to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
If an employer has a mandatory vaccine policy that is more restrictive than the ETS, is that sufficient to comply?
Yes, provided the employer meets all the requirements of OSHA’s ETS: developing, implementing and enforcing a written policy on vaccines, testing and face coverings; providing information to employees on vaccines and the requirements of the ETS; providing paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following each dose of the vaccine; obtaining and maintaining records and a roster of employee vaccination status; and complying with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
How long will the ETS remain in effect?
The ETS can remain in effect for six months. OSHA must replace the ETS with a permanent standard, which must undergo the typical notice-and-comment period rulemaking. The ETS took effect on November 5, 2021, and is set to expire in six months on May 5, 2022. It is unclear whether the Sixth Circuit will issue a decision before the May 5 expiration of the ETS. OSHA commenced the permanent rulemaking process as part of its Federal Register notice, requesting comment on a range of topics, including existing testing and vaccine programs and whether the standard should be applied to employers with under 100 employees. The deadline for comments on the permanent standard is Jan. 19, 2021.
What are the penalties for non-compliance with the ETS?
There are no penalties while the stay on the ETS is in effect because there is no enforcement.
However, OSHA said after the Supreme Court's ruling that it will continue to use the Occupational Safety and Health Act’s general duty clause, which requires employers to maintain a workplace “free from recognized hazards,” to enforce COVID-19 requirements in the workplace. However, OSHA has issued few violations related to COVID-19 because the it must show that an actual COVID-19 hazard exists in the workplace and that the steps it requires employers to take to mitigate COVID-19 (e.g., testing, masking, vaccination) are technologically and economically feasible.
OSHA had said that covered employers that ignore the ETS could face citations and penalties of up to $13,653 per violation, as well as additional citations or penalties for willful or egregious failures to comply. The penalty could be applied by OSHA or an OSHA state plan for each facility, an area within a facility, or each employee within a facility. Keep in mind that OSHA can issue citations and penalties for individual whistleblower and retaliation claims potentially asserted by employees.
How does the ETS operate in OSHA State Plan states?
Because the court’s stay means that OSHA does not currently have a COVID-19 standard in place, states with OSHA-approved plans are free to adopt standards identical to, or different from, OSHA’s ETS. Some of these states, including California, Illinois, Minnesota, Oregon, Virginia and Washington, have already adopted COVID-19 standards. However, both Minnesota and Oregon have temporarily stayed implementation of their vaccine-or-testing ETS in light of the Supreme Court’s decision, and other states with OSHA plans may choose to do the same. Another approved-plan state, Iowa, has expressly declined to adopt a vaccinate-or-test rule.
The federal OSHA’s jurisdiction covers private employers in 29 states, the District of Columbia and American territories, subject to certain exceptions, such as federal worksites and military bases. As discussed below, in the remaining 21 states with OSHA-approved state plans, the state agency enforces safety regulations in that jurisdiction.
The 29 federal OSHA states and 4 American Territories are: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia and Wisconsin, as well as the District of Columbia.
The 21 state OSHA plans (enforced by the applicable state agency) are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming, as well as Puerto Rico.
What if the company has facilities or operations in multiple states?
It will be necessary to comply with the standards and timeframes applicable in each state in which the covered employer operates.
What does the ETS mean for states, like Florida and Texas, that have “banned” vaccine mandates?
Following the Supreme Court's decision, states can impose their own COVID-19 related mandates on employers. This means that state or local laws or orders that prohibit or require vaccine mandates are enforceable.
Which employers are covered by the ETS?
All private employers with 100 or more employees must comply with the ETS, unless they meet one of the limited exceptions. Federal contractors covered by the federal contractor mandate are not covered by the ETS.
OSHA said it may impose the COVID-19 vaccine mandate on employers with less than 100 employees, including possibly eliminating the testing option.
Why did OSHA choose 100 or more employees as the threshold in the ETS if all workers are in “grave danger” from the novel coronavirus?
OSHA cites four reasons supporting its 100-employee threshold:
- The ETS is feasible for employers of that size to enact promptly and without undue disruptions.
- The ETS will cover two-thirds of all private sector workers.
- The risk of spread—and the deadliest outbreaks—is greater in large workplaces.
- The threshold is comparable to size requirements in other regulations.
How does an employer determine whether it has 100 or more employees?
Employers must count all employees, including part-time workers, across all of their U.S. locations, regardless of an employee’s vaccination status or where they perform their work. While independent contractors are not included in the head count, keep in mind the ongoing fights over misclassification employees as independent contractors.
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.
What about related entities under an ownership umbrella?
The ETS provides different standards for these business arrangements. OSHA states in the ETS that “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.” The ETS does not give further guidance on what “safety matters” may be considered. Expect OSHA to decide coverage on a fact-specific basis.
Because the ETS is already in effect, employers should also be cautious about making operational changes now to avoid coverage under the ETS.
What happens if the number of employees changes to above or below 100?
An employer with 100 or more employees on November 5, 2021, is subject to the ETS for its six-month duration. If an employer has fewer than 100 employees on November 5, 2021, it has no compliance obligations under the ETS.
If an employer subsequently hires more workers and hits the 100-employee threshold for coverage, then OSHA expects the employer to come into compliance. If an employer is subject to the ETS but then loses employees and falls below the 100-employee threshold, OSHA says the ETS continues to apply for the remainder of the time it is in effect, regardless of fluctuations in the size of its workforce. So, once in, always in.
How does OSHA define “workplace” in the ETS?
OSHA defines a “workplace” as a physical location (fixed or mobile) where the employer’s work or operations are performed. It does not include an employee’s residence, even if the employee is teleworking from home. A workplace includes the entire site (including outdoor and indoor areas, a structure or a group of structures) or an area within a site where work or any work-related activity occurs (e.g. break rooms, entering or exiting work). Examples of employees who have mobile workplaces include delivery services and maintenance and repair technicians who go to homes or businesses to provide repair services.
Does the ETS apply to employees who work remotely?
OSHA says that its ETS requirements do not apply to employees who never work in an office and who never meet with co-workers or customers, even though the agency requires these remote workers to be included in the count to determine the 100-employee threshold.
OSHA provides additional guidance for remote employees: Employees who work remotely some of the time will be required to show proof of vaccination or testing based on when they are at the workplace rather than at home. Specifically, OSHA has said that employers must ensure that employees who enter the workplace or interact with others as part of their job are tested for COVID-19 within seven days prior to returning to the workplace and provide documentation of that test result to the employer upon return.
Does the ETS apply to employees who work outside?
OSHA says that the ETS requirements do not apply to employees who work exclusively outdoors. It is critical that employees have no work time indoors, even if brief. OSHA allows employers to make slight adjustments to employees’ current work practices to ensure that they qualify for the outdoor exemption. Even if these workers do not have to comply with the ETS requirements, they still must be included in the count to determine if the employer meets the 100-employee threshold.
May an employee create different plans for different types of workers?
Yes. OSHA says the ETS allows an employer to create different partial plans for workers, such as a vaccine and testing mandate for corporate office workers and a vaccine mandate for floor employees. The only requirement is that the plans comply with the ETS.
When must employers comply with the weekly testing requirement?
Employers have until February 9, 2022, to comply with the testing requirements. Employees who have completed the entire vaccination series (two weeks after the final shot) by that date do not have to be tested. Employers must also keep records of all COVID-19 test results submitted by employees and treat them as employee medical records for purposes of disclosure.
What must employers offer to comply with the vaccine requirement?
Employers must provide workers reasonable time to obtain the vaccine, including up to four hours of paid time off for each vaccine dose.
Must an employer collect proof of COVID-19 vaccination?
Yes. Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. If no proof of vaccination is provided, the employer must treat such employees as unvaccinated. Acceptable proof of vaccination status includes:
- the record of immunization from a health care provider or pharmacy;
- a copy of the 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; or
- 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).
In addition to the foregoing, OSHA will allow an employer to accept a signed and dated employee attestation when an employee is truthfully unable to produce proof of vaccination. The attestation must state the employee’s vaccination status and that he or she is unable to produce proof of vaccination.
Employers that have collected proof of vaccination status before the effective ETS date, and who have retained such records, are not required to re-evaluate vaccination status for fully vaccinated employees and are permitted to use any record of response, even if it is not listed as acceptable proof under the ETS.
What are an employer’s record-keeping obligations?
Under the ETS, OSHA requires employers to maintain a record and a roster of each employee’s vaccination status. The employer also must maintain a record of each test result provided by each employee. These records must be maintained as confidential medical records and must not be disclosed except as required or authorized by this ETS or other federal law. The records must be maintained and preserved while the ETS is in effect.
The roster must list all employees and clearly indicate for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status. Although unvaccinated employees will not have proof of vaccination status, the standard requires the employer to include all employees, regardless of vaccination status, on the roster.
Additionally, keep in mind that some state laws define medical records to include vaccination status. Be sure to comply with these state laws.
Are COVID-19 fatalities and hospitalizations still reported?
OSHA removed the 24-hour hospitalization and 30-day fatality reporting requirements. An employer must report to OSHA any hospitalization or fatality from a work-related COVID-19 case no matter when it occurs.
Are there any other exceptions to the employer mandate?
Yes, OSHA reminds employers that federal law requires them to consider and possibly accommodate valid medical and religious accommodation requests to be exempted from the vaccination requirement. An employer’s policy should explain how employees can request exemptions on the basis of medical or religious reasons:
- The Americans with Disabilities Act (ADA) establishes the federal framework applicable to evaluating accommodation requests based on medical reasons.
- Title VII of the Civil Rights Act of 1964, as amended, provides the basis for requests for reasonable accommodation based on religion.
- State or local laws may provide similar protections.
What are the requirements for the testing option?
Employees who report to a workplace where there are other individuals and who are not vaccinated must be tested at least once weekly. Weekly testing applies to employees who report to the workplace at least once every seven days, and employees must provide documentation of the most recent COVID-19 test result no later than the seventh day following the date the employee last provided a COVID-19 test result. Employees who work exclusively outdoors are not subject to the ETS.
What if an unvaccinated employee has had a prior COVID-19 infection?
Employees who have tested positive for COVID-19 within the immediately preceding 90 days do not have to comply with a testing requirement. Testing positive means the employee received a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed healthcare provider. Unvaccinated employees, regardless of whether they have previously been infected with COVID-19, must still wear a face covering in the workplace.
How long do unvaccinated employees have to submit to weekly COVID-19 testing?
The testing requirement of the ETS applies to unvaccinated employees until they are fully vaccinated or until the ETS is no longer in effect.
In the case of two-dose primary vaccination series (e.g. Pfizer and Moderna), an employee is not considered fully vaccinated until two weeks after the second shot and still needs to comply with the weekly testing requirement until this date, even within the two-week waiting period. In the case of the one-dose vaccine (Johnson & Johnson), an employee is not considered fully vaccinated until two weeks after the single shot.
Are there limitations for at-home tests?
While at-home tests are authorized, OSHA requires an independent confirmation of the test to ensure the integrity of the result. If an at-home test is being used, the employer can validate the test through the use of a proctored test that is supervised by an authorized telehealth provider.
Who pays for the tests?
The ETS does not require employers to pay for the cost of COVID-19 testing. However, an employer may be required to pay for COVID-19 testing if required by other laws or regulations or a collective bargaining agreement.
Are employers required to pay for the time employees spend testing?
The ETS does not provide a clear answer on whether employers must pay employees to test, and states that the “ETS does not require employers to pay for any costs associated with testing.” Under current DOL guidance, employers are required to pay employees for time spent waiting for and receiving medical attention (including COVID-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act (FLSA). This likely includes required testing occurring on employees’ days off. DOL’s Wage and Hour division will be updating its guidance on the impact of the ETS on federal wage and hour laws.
What if there is a shortage of testing supplies or labs?
OSHA has determined that, as of November 5, 2021, there are sufficient COVID-19 testing supplies and laboratory capacity available to meet the requirements of the ETS. An employer that encounters a shortage of testing supplies or laboratory backlogs should contemporaneously document these events and make every effort to comply until the supply is replenished or the laboratories are no longer backlogged.
What information must employers provide to employees about the ETS?
Employers are required to communicate information about the ETS to employees in the normal way the business conveys workplace policies. The communication must include:
(a) employer policies created to comply with the ETS, including masking and testing rules;
(b) how employee records will be requested;
(c) time and pay for leave to obtain a vaccine and recover from side-effects;
(d) procedures to follow after a positive COVID-19 test;
(e) a copy of the CDC fact sheet about COVID vaccine efficacy, safety and benefits;
(f) informing employees that they cannot be discriminated against or fired for exercising their rights, nor retaliated against for reporting violations of standards to OSHA; and,
(g) providing a fact sheet informing workers that it is a criminal offense to submit false statements or documents under the OSH Act.