In accordance with a directive from President Biden to minimize the risk of COVID-19 transmission in the workplace, this morning, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard requiring that, with limited exceptions, private employers with 100 or more employees must require that employees either be fully vaccinated against COVID-19 or otherwise provide a negative COVID-19 test on at least a weekly basis (the “100+ ETS”).
The 100+ ETS is effective immediately, but compliance is not required until December 5, 2021 (and, with respect to the testing requirement that employees who are not fully vaccinated be tested, January 4, 2022).
Covered Employers
The 100+ ETS applies to all private employers with 100 or more employees (“Covered Employers”). All employees across the employer’s U.S. workplaces are counted towards the employee threshold, regardless of whether the employee is actually working in the workplace or working remotely. At a multi-employer worksite, each company represented and present at the worksite would only count its own employees. However, employees of staffing agencies or contractors that work at the employer’s workplace are not counted.
Where a single corporate entity has multiple locations, all employees at all locations are counted. However, in the franchise context, if each franchise location is independently owned or operated, the franchisor and each franchisee would be separate entities for coverage purposes.
The number of employees should be counted as of the effective date of the 100+ ETS. If an employer has 100 or more employees as of November 5, 2021, the 100+ ETS applies for the duration that the 100+ ETS is in place, even if the number of employees dips below 100. If an employer is not covered as of November 5, 2021 but subsequently crosses the 100-employee threshold, the employer must then start complying with the requirements of the 100+ ETS.
The 100+ ETS does not apply to settings where any employee provides healthcare services or healthcare support services subject to the requirements of the OSHA Healthcare Emergency Temporary Standard.
Covered Employees
The 100+ ETS applies to all employees of a Covered Employer except for those who do not report to a workplace where other individuals are present, those who are working from home, and those who work exclusively outdoors.
Contractors working at an employer’s worksite are not subject to the requirements of the 100+ ETS even if the employer is a Covered Employer, though employers can require contractors to comply at their election. Further, the 100+ ETS does not apply to employees covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors.
Mandatory Vaccination and/or Testing Policy
Covered Employers must develop, implement and enforce a policy that either:
- Requires mandatory vaccination, or
- Allows employees to elect to either get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
OSHA has published sample policies on its website.
Determination of Employee Vaccination Status
Covered Employers will need to:
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Determine the vaccination status of each employee by obtaining acceptable proof from each employee (i.e., CDC card, copy of medical records documenting the vaccination, record of immunization from a healthcare provider or pharmacy);
- Maintain a record of the employee’s vaccination status and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated; and
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Create a roster of all employees that clearly indicates their vaccination status (i.e., fully vaccinated, partially vaccinated, not vaccinated because of a medical or religious accommodation, not vaccinated/have not provided acceptable proof of their vaccination status).
Paid Time Off to Get Vaccinated
Covered Employers must provide employees with reasonable time, including up to four (4) hours of paid time off, to receive each vaccination dose, and reasonable paid sick leave to recover from any side effects experienced following each vaccination dose.
The time off to get vaccinated is in addition to any other time off an employee may be entitled to under a Covered Employer’s policies.
Covered Employers may require the employee to use paid sick leave under an existing policy if the employee experiences side effects. If the Covered Employer does not already provide paid sick leave or the employee has used up their paid sick leave, the Covered Employer must still provide a reasonable amount of paid sick leave to recover from the vaccine. OSHA presumes that up to two (2) days of paid sick leave per vaccination dose for side effects is “reasonable” under the 100+ ETS.
Testing and Masking in Lieu of Vaccination
As of January 4, 2022, Covered Employers must ensure that each employee who is present in the workplace and who is not fully vaccinated is tested for COVID-19 at least weekly, or within 7 days before returning to work if away from the workplace for a week or longer, and maintain a confidential record of each test result. While the 100+ ETS does not require that Covered Employers pay for any costs associated with testing, other laws and regulations – like the Fair Labor Standards Act - or applicable collective bargaining agreements may require Covered Employers to bear the cost of testing and/or the time spent getting tested.
Employees who test positive must promptly provide notice to the Covered Employer. Any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, must be immediately removed from the workplace and must be kept out of the workplace until they complete their quarantine/isolation period.
In addition, employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes.
Information About Vaccination
Covered Employers must provide all employees with information, in a language and at a literacy level the employee understands, about:
- The requirement of the 100+ ETS and workplace policies and procedures established to implement the 100+ ETS;
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Vaccine efficacy, safety and the benefits of being vaccinated (by providing the CDC’s “Key Things to Know About COVID-19 Vaccines”);
- Protections against retaliation and discrimination for reporting work-related injuries or illnesses, filing an occupational health or safety complaint, or exercising rights under the 100+ ETS or OSHA; and
- Laws that provide for criminal penalties for knowingly supplying false statements or documentation.
100+ ETS Effect on State/Local Law
The 100+ ETS preempts any state or local requirement that ban or limit an employer from requiring vaccination, face coverings or testing. However, the 100+ ETS does not preempt generally applicable requirements meant to protect public health by helping to prevent the spread of COVID-19 in public spaces, such as requirements applicable to both employees and the general public regarding face coverings in indoor spaces, or requiring proof of vaccination to enter certain indoor spaces (e.g., the Key to NYC program).
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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
