Nearly two months after President Biden unveiled his COVID-19 Action Plan, the federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) that requires all employers with at least 100 employees to establish, implement, and enforce a written policy mandating that each employee either be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing and wear face coverings indoors. OSHA clarifies that the ETS is meant to strongly encourage employers to stipulate that its employees must be fully vaccinated against COVID-19, but includes a narrow testing and face covering exception—at least for now.

This ETS marks one of the most aggressive actions the federal government has taken against COVID-19 and sweeps across all industries, applying to two-thirds of the private sector workforce. OSHA is optimistic that this ETS will result in a dramatic increase in vaccinations. OSHA has estimated that 22.7 million unvaccinated individuals (72% of the covered employees who are currently unvaccinated) will be encouraged to become vaccinated under the ETS. OSHA believes that under the ETS, 89.4% of covered employees (or 75.3 million) will be fully vaccinated.

What Employers Are Covered Under the ETS?

The ETS applies to all employers who have 100 or more employees and who are not required to comply with the Centers for Medicare & Medicaid Services rule also issued yesterday or the Executive Order mandating vaccination of federal contractors.

How Are Employees Counted?

In calculating the number of employees, the employer must include all employees across all U.S. locations, regardless of the employees’ vaccination status, where they perform their work (including remotely or exclusively outdoors), or if they are part-time employees. Notably, independent contractors do not count toward this total.

The ETS provides guidance for counting employees in several business relationships. For franchisors and franchisees, if each franchise location is independently owned and operated, the franchisor and franchisees are treated as separate entities, meaning the franchisor and each franchisee would count its employees separately. If two or more related entities handle safety matters as one company, then the employees of all entities should be counted together. For staffing agencies that place employees at different employer locations, only the staffing agency should count those workers.

Importantly, if at any point while the ETS is in effect an employer has 100 or more employees, that employer must come into and remain in compliance with the ETS for the entire time the ETS is in effect, regardless of whether the employer later has less than 100 employees.

Can Employees Be Excepted From A Mandatory Employer Vaccination Policy?

Yes. The “mandatory vaccination policy” under the ETS provides exceptions for employees for whom

• a vaccine is medically contraindicated,
• a medical necessity requires a delay in vaccination, or
• the employee is 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.

Additionally, workers who are fully remote or who work exclusively outdoors are not covered by the ETS.

What Is Required In The Written Policy On Vaccinations?

The ETS requires employers to either establish, implement, and enforce a written mandatory vaccination policy or a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of weekly testing and wear a face covering indoors, with limited exceptions.

The written policy should address

• requirements for COVID-19 vaccination,
• applicable exclusions,
• information on determining an employee’s vaccination status and how the information will be collected,
• paid time and sick leave for vaccination purposes,
• the procedures employees must follow to provide notice of a positive COVID-19 test or diagnosis,
• the procedures to be used for requesting records, and
• information on the employer’s policies and procedures for COVID-19 testing and face coverings.

How Can An Employer Determine An Employee’s Vaccination Status?

Acceptable proof of vaccination status includes

• a record of immunization form 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 health care professional(s) or clinic site(s) administering the vaccine(s).

Alternatively, if an employee is unable to obtain any of the above forms of vaccination status, the employee can provide an affidavit or declaration attesting to their vaccination status, that they have lost and cannot otherwise obtain proof of vaccination, and, to the best of their knowledge, the type of vaccine administered, date(s) of administration, and the name of the health care professional or clinic site that administered it.

Does An Employer Need to Pay Any Costs for Vaccination And Recovery From Side Effects?

Employers must provide support for employee vaccination. Specifically, employers must provide a reasonable amount of time for employees to receive vaccination doses and up to four hours of paid time, including travel time, at the employer’s regular rate of pay for vaccination to occur.

Employers also must provide “reasonable time” and paid sick leave to recover from vaccination side effects. If an employee does not have available sick leave, then paid leave must be provided. Employers can only require that employees use accrued sick leave, not advanced, negative, or future sick leave. Employers can set a reasonable cap on the amount of paid sick leave employees can use, and OSHA “presumes” that up to two days’ sick leave per dose would meet this requirement.

How Often Do Unvaccinated (Or Partially Vaccinated) Employees Need To Be Tested?

The ETS distinguishes between employees who report to work at least once every seven days and those who do not. For employees who report to work at least weekly, they must be tested for COVID-19 at least once every seven days and provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day from the last test result. For employees who do not report to work at least weekly, they must be tested for COVID-19 within seven days prior to returning to the workplace and provide documentation upon return.

After an employee receives a positive COVID-19 test or diagnosis, that employee is not required to be tested again for COVID-19 for 90 days.

Does the ETS Require Employers To Pay For Testing, Face Coverings, Or Paid Leave Following a Positive COVID-19 Test Or Diagnosis Under the ETS?

No. The ETS does not require employers to provide or pay for COVID-19 testing, face coverings, or leave following a positive COVID-19 test or diagnosis under the ETS. OSHA hopes this potential financial burden will encourage employees to get vaccinated. However, employers should reference other applicable state and federal laws to determine whether they may require employer payment under particular circumstances.

What Employee Notification Procedures Are Required?

Employers must require employees to “promptly” notify it when the employee receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, regardless of vaccination status. Employers should also establish notification procedures for employees.

When Are Employers Required to Remove Employees From The Workplace Under The ETS?

If an employee receives a positive COVID-19 test or diagnosis, the employer must immediately remove that employee from the workplace until that employee

• receives a negative test result,
• meets CDC’s “Isolation Guidance” standards that at least 10 days have passed since the first appearance of symptoms, at least 24 hours have passed without a fever, and all other symptoms (excluding loss of taste and smell) are improving, or
• receives a return-to-work recommendation from a licensed healthcare provider.

What Are Employers’ Reporting Requirements Under The ETS?

An employer must make a report to OSHA within eight hours of learning that an employee died from a confirmed case of COVID-19 and that the cause of death was the result of a work-related exposure to COVID-19. An employer must report each work-related COVID-19 in-patient hospitalization to OSHA within 24 hours of the employer learning about the in-patient hospitalization. Employers must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.

Employers can report to OSHA by telephone to the OSHA Area Office that is nearest to the site of the incident, the OSHA toll-free telephone number, or by electronic submission using the reporting application on OSHA’s website.

What Are Employers’ Records Requirements Under the ETS?

Employers must maintain records of employees’ vaccination status and COVID-19 test results and treat these as medical records. Employers must also maintain a roster of all employees that indicates whether each employee is fully vaccinated, partially vaccinated, or not fully vaccinated and the reason why. The ETS provides several timelines for employers for providing information or records to employees and the Assistant Secretary upon request. Employers must provide individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS to the tested employee or anyone with written authorized consent of the employee by the end of the next business day after a request. Upon request, employers must provide to an employee or their representative the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace.

Employers must provide the written policy and the aggregate numbers to the Assistant Secretary for examination and copying within four business hours of a request. Employers must provide all other records and documents required to be maintained under the ETS to the Assistant Secretary by the end of the next business day after a request.

When Do The Requirements Of The ETS Take Effect?

While the effective date is the date of publication in the Federal Register—November 5, 2021—the deadline for all of the provisions in the ETS, except for the testing requirement, is 30 days after the effective date (December 5, 2021), and the deadline for the testing requirement is 60 days after the effective date (January 5, 2022).

Are Challenges To The ETS Anticipated?

Yes. In September, the Attorneys General of 24 states sent a letter to President Biden in opposition to his attempt to mandate the vaccination of private citizens. In this letter, the Attorneys General of these 24 states reasoned that the plan is disastrous and counterproductive as it will cause some to leave the job market, will likely increase skepticism of vaccines, and fails to account for differences between employees that may justify more nuanced treatment. The Attorneys General also declared in this letter that the “edict” is illegal because there is no “grave danger,” COVID-19 is not a “substance,” “agent,” or “hazard,” and it is not “necessary.”

Yesterday, Kentucky, Ohio, and Tennessee filed a lawsuit in Kentucky challenging the ETS, while Louisiana, Indiana, and Mississippi filed a similar lawsuit in Louisiana. Joining the fray thus far today are

• a coalition of 11 states (Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming) and five organizations, who filed a petition for judicial review of the ETS in the United States Court of Appeals for the Eighth Circuit,
• a coalition of five states (Texas, Louisiana, Mississippi, South Carolina, and Utah) and seven organizations, who filed a petition for review in the Fifth Circuit,
• a coalition of three states (Florida, Alabama, and Georgia) and six organizations, who filed a petition for review in the Eleventh Circuit; and
• Seven states (Kentucky, Idaho, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia), who filed a petition for review in the Sixth Circuit.

We can expect to see further challenges to the ETS both in state legislation, executive orders, and challenges in the courts.

Dykema will continue to provide updates as they arise. If you have any questions regarding the OSHA ETS, please contact Ray Bissmeyer, Jim Hermon, Christina Brunty, or your Dykema relationship attorney.