By: E. Fredrick Preis, Jr., Rachael Jeanfreau, and Philip Giorlando
On November 5, 2021, OSHA published its Emergency Temporary Standard (“ETS”) for COVID-19, requiring covered employers to implement a mandatory COVID-19 vaccination policy or a policy allowing employees to either get vaccinated or undergo weekly COVID-19 testing and wear a face covering at the workplace. Immediately following its publication, many states filed emergency motions to stop the ETS from taking effect, and the Fifth Circuit granted an emergency motion to stay the ETS on November 6, 2021, which order the Court extended on November 12, 2021.
Covered Employers – Which Employees Count towards the 100-Employee Threshold?
Covered employers under the OSHA Emergency Temporary Standard include all private employers with 100 or more employee’s business-wide and most public employers. The count of employees includes full-time, part-time, and temporary employees. The 100-employee count also includes employees who work off-site, remotely, or exclusively outdoors as long as they work in the U.S. For employers with fluctuating employee numbers, the employer is covered if it obtains 100 or more employees at any point while the ETS is in effect, even if the number of employees later drops below 100.
The ETS excludes employers who are Federal contractors to the extent that they are already covered by the Federal contractor guidelines issued by the Safer Federal Workforce Task Force implementing President Biden’s Executive Order 14042 requiring certain employees of covered contractors and subcontractors to receive the COVID-19 vaccination, with no option for those employees to provide a negative COVID-19 test result in lieu of receiving the vaccination. However, if a contractor is not covered by the Executive Order or if certain employees of a covered contractor are not impacted by the Executive Order, the OSHA rule could presumably still apply if the employer meets the 100-employee threshold.
Excluded Employees under OSHA’s ETS
The ETS’s required COVID-19 vaccination/testing policy does not apply to those employees who do not report to a workplace where other individuals are present, employees while working from home, and employees who work exclusively outdoors. For these employees, however, they must work exclusively remotely or outdoors, meaning that even infrequent meetings with other employees—including driving in vehicles together to and from outdoor worksites—would result in such employees being covered by the ETS. However, for employees who work exclusively outdoors, the ETS provides that brief indoor conduct, such as lunch breaks and bathroom breaks, does not require an employee who otherwise works exclusively outdoors to fall under the ETS.
Vaccination/Testing Policy Requirements under OSHA’s ETS
The employer must develop, implement, and enforce a written mandatory COVID-19 vaccination policy that either mandates vaccination, or provides employees the option of either getting vaccinated or undergoing weekly COVID-19 testing and wearing a face covering at the workplace. The employer must also determine the vaccination status of each employee, obtain acceptable proof of vaccination from its vaccinated employees, and maintain the vaccination records. The employer is also required to create a roster of all employees and indicate whether each employee is fully vaccinated, partially vaccinated, or not vaccinated. The ETS specifies that the roster should indicate whether any unvaccinated employees have a medical or religious accommodation preventing vaccination. The ETS also requires employers to provide employees up to four hours of paid time to receive each primary vaccination dose and reasonable paid sick leave time to recover from any side effects experienced by each primary vaccination dose. The ETS does not apply to the COVID-19 booster shots.
For those employees that are not fully vaccinated, the employer must ensure that the employee is tested for COVID-19 at least weekly if the employee comes to the workplace at least once a week, or within 7 days before returning to work if the employee is away from the workplace for a week or longer. A COVID-19 test complies with the ETS if it is authorized by the Food and Drug Administration to detect the COVID-19 virus, is administered in accordance with its instructions, and is not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Therefore, over-the-counter tests can satisfy the testing requirements, provided they are not both self-administered and self-read. The testing requirement also applies to employees who are not fully vaccinated due to an accommodation for a disability or religious belief. The employer is required to keep a record of each test result, but these results are to be treated as confidential employee medical records and must not be disclosed.
Importantly, the ETS does not require employers to pay for any costs associated with testing, however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements. Employers should therefore be cautious of requiring their employees to pay for COVID-19 tests under the ETS unless they have confirmed that such a requirement complies with other applicable laws and any applicable agreements. The employer must also ensure that employees who are not fully vaccinated wear a face covering when indoors or occupying a vehicle with another person for work purposes.
Positive COVID-19 Tests
Employees who test positive for COVID-19 must promptly inform their employer, and the employer must immediately remove from the workplace any employee who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. The employer must keep COVID-19 positive employees out of the workplace until the return-to-work criteria set by the CDC are met. For any employees who do test positive for COVID-19, those employees are not required to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis. Any work-related COVID-19 fatalities must be reported to OSHA within 8 hours of the employer learning about them, and work-related COVID-19 hospitalizations must be reported within 24 hours of the employer learning about them.
Notice Requirements under OSHA’s ETS
Employers are required to provide information on multiple topics to its employees: (1) the requirements of the ETS; (2) the workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC’s “Key Things to Know About COVID-10 Vaccines” document); protections against retaliation and discrimination (which can be found here); and laws that provide for criminal penalties for knowingly supplying false statements or documentation (which can be found here).
Deadline for Compliance with OSHA’s ETS
The current version of the ETS requires that employers comply with most provisions of the ETS by December 5, 2021, or 30 days after the date of publication, and comply with the testing requirements by January 4, 2022, or 60 days after the date of publication. OSHA has also indicated that it anticipates the ETS will be in effect until May of 2022 but may revise the ETS should any information indicate a change in measures is necessary to address a grave danger caused by COVID-19. Of course, these deadlines depend on the results of the pending litigation regarding the ETS, discussed further below.
Comparison of OSHA’s ETS to CMS and Federal Contractor Rules
CMS’s Final Rule
Although OSHA’s ETS has received the majority of media attention regarding the Federal government’s mandatory vaccination and testing regulations, the Centers for Medicare and Medicaid Services (CMS) released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule on November 4th. This Final Rule is applicable to most Medicare and Medicaid certified healthcare providers and suppliers, and these providers must comply with the Final Rule to continue participation in Medicare and Medicaid programs. As such, the CMS’s Final Rule applies to a smaller set of employers than OSHA’s ETS.
The Final Rule requires that all eligible staff of covered providers and suppliers must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine by December 5, 2021. Eligible staff must be fully vaccinated by January 4, 2022.
Covered facilities include all hospitals, home health agencies, clinics, hospices, ambulatory surgical centers, psychiatric facilities, rural health clinics, and Federally Qualified Health Centers. Note that although CMS’s Final Rule does not apply directly to every healthcare entity, other Federal mandates, including OSHA’s ETS might apply.
Eligible staff includes all facility employees, licensed practitioners, volunteers, and all other individuals who provide care or services to the facility or its patients under contract or other arrangement. Staff and officers with direct or indirect patient contact, including administrative staff, facility leadership, and board members, are covered by the rule.
The Final Rule provides exemptions to the vaccination requirement based on medical conditions or religious beliefs, observances, or practices. The Final Rule does not include testing as an alternative to vaccination. Therefore, unless an employee is exempt because of a medical condition or religious belief, then that employee must be vaccinated. CMS will enforce the Final Rule through its normal survey and enforcement processes. A provider or supplier that fails to comply with the Final Rule will be cited as noncompliant and given an opportunity to comply before CMS takes additional action, including termination of the facility’s Medicare/Medicaid provider agreement.
Federal Contractor Rule – Vaccination Required with no Option to Provide a negative Test Result in Lieu of Vaccination
The Safer Federal Workforce Task Force initially issued its guidance for Federal contractor COVID-19 safety mandates on September 24, 2021. The Guidance originally required that all covered Federal contractors, subcontractors, and their employees who work on covered contracts must be fully vaccinated by December 8, 2021, although that date has been extended. The enforcement of this Guidance is contractual in nature, in that the guidance and the White House Executive Order require that Federal agencies incorporate the Guidance into all covered Federal contracts upon renewal or extension of the contract. The Federal contracts covered are very broad and generally include all contracts that provide services to the Federal government and meet the FAR simplified acquisition threshold of $250,000; contracts solely for the provision of products are not covered.
The Guidance provides three main requirements for reducing the spread of COVID-19. First, covered contractors must ensure that all employees who provide services in connection with the covered contract are fully vaccinated unless an employee is entitled to an accommodation under applicable law. The deadline for full vaccination was extended on November 4, 2021 from December 8, 2021 to January 4, 2022. Contractors must require proof of vaccination. Unlike OSHA’s ETS, this vaccine mandate applies to contractors’ in-person and remote workers, provided they work in the United States.
The second requirement is masking and social distancing. The Guidance requires that all covered contractor employees and visitors must comply with the CDC’s masking and physical distancing guidelines when in a covered contractor workplace. As such, any changes to the CDC’s guidance will be incorporated into the Guidance’s requirements.
Third, the Federal contractor Guidance requires covered contractors to designate a person or persons to coordinate implementation of and compliance with the Guidance at their covered workplaces. The designated individual must ensure that information on masking and distancing is distributed to covered employees and all others likely to be present at the workplace. This designated individual would also be responsible for ensuring that all employees provide proof of vaccination.
Status of the Federal Mandates in Courts
Currently, the Fifth Circuit’s stay over OSHA’s ETS is still in place, preventing the OSHA mandate from taking effect. Because multiple other emergency suits have been brought in other circuits, including the Sixth, Eighth, and Eleventh Circuits, the next step will be determining through judicial lottery which Circuit Court will hear and rule on the legality of the ETS. The Circuit Court chosen, if not the Fifth Circuit, could overturn the Fifth Circuit’s emergency stay, or could proceed to rule the ETS illegal or unconstitutional in some manner while the emergency stay is pending.
Additionally, ten states, led by the Attorney General for Missouri, filed a lawsuit in the Eastern District of Missouri seeking to stop CMS’s Final Rule from taking effect. No stay has been issued by any court yet, so CMS’s Final Rule is currently in effect. The same ten states also previously filed suit against the Federal contractor mandate discussed above. Similarly, no stay has been issued by any court, so the Federal contractor mandate is still in effect as well.
Employers should closely monitor the status of these cases and continue to prepare with their human resources team and labor and employment counsel as though the ETS will ultimately survive court challenge because the many requirements described above will take substantial time to implement. Should the stay be lifted and the ETS found to be legal, employers could potentially face a very time-intensive process with little warning. Our Firm will continue to monitor these cases and OSHA’s guidance regarding the ETS and provide additional updates as they are announced.
