OSHA Unveils COVID-19 Vaccination and Testing Rule – What Employers Need to Know

Back in September, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop a rule requiring that all employers with 100 or more employees to require vaccination or, as an alternative, weekly testing…

Back in September, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop a rule requiring that all employers with 100 or more employees to require vaccination or, as an alternative, weekly testing. On November 4, 2021, the U.S. Department of Labor finally published the emergency temporary standard (ETS) implementing the Biden Administration’s mandate. The ETS also requires that these employers provide paid time for employees to get vaccinated and recover from vaccination side effects, and mandates that all unvaccinated workers wear a face mask in the workplace. 

According to the DOL, the ETS will cover two-thirds of the nation’s private-sector workforce. “While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick said in a press statement. “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

When is the ETS effective? – Compliance Deadlines

The ETS took effect immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.

That means that the testing requirement for unvaccinated workers takes effect January 4, 2022. Employers must be in compliance with all other requirements – such as providing paid time for employees to get vaccinated and enforcing masking for unvaccinated workers – on or before December 5, 2021.

Which employers are covered by the ETS?

The ETS applies to employers with 100 or more employees.

How does the ETS interact with other vaccine mandates?

On November 4, 2021, the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services also published a rule implementing its requirement that health care workers at facilities participating in Medicare and Medicaid be fully vaccinated. The rule applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. 

OSHA has clarified that it will not apply its new ETS to workplaces covered by either the CMS rule or the federal contractor vaccination requirement. This is good news as it means employers won’t have to track multiple vaccination requirements for the same employees. OSHA also emphasized that its new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

Which employees count towards the 100-employee count?

In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not.

Which employees are required to adhere to the ETS?

Even where the standard applies to a particular employer, its requirements may not apply to certain employees. The ETS establishes exceptions for employees (i) who do not report to a workplace where other individuals such as coworkers or customers are present; (ii) while working from home; or (iii) who work exclusively outdoors.

Should employers exclude employees who fall under the above exceptions from their employee counts?

No. The ETS provides that the determination as to whether a particular employer is covered by the standard should be made separately from whether individual employees are covered by the standard’s requirements. OSHA provides the following examples:

• If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
• If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
• If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
• If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
• If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.

What does the ETS require?

A. Mandatory Vaccination Policy

Under the ETS, employers must establish, implement, and enforce a written mandatory vaccination policy. The policy must require vaccination of all employees, including vaccination of all new employees as soon as practicable.

In FAQs published by OSHA in conjunction with the ETS, OSHA advises that vaccination policies should include:

• Requirements for COVID-19 vaccination;
• Applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs);
• Information on determining an employee’s vaccination status and how this information will be collected;
• Paid time and sick leave for vaccination purposes;
• Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
• Information to be provided to employees, e.g., how the employer is making that information available to employees; and
• Disciplinary action for employees who do not abide by the policy.

OSHA further advises that the employer should include all relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement, all of which are necessary components of an effective plan.

B. Masking Requirement

Employers must also ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except:

• 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.
• Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).

Are there any exceptions to mandatory vaccination?

Yes, exceptions may be provided for those employees:

• For whom a vaccine is medically contraindicated;
• 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.

What is required for employees that are not fully vaccinated?

All covered employers must ensure that any unvaccinated employees begin producing a verified negative test to their employer on at least a weekly basis.

Do employers have to pay for the weekly testing alternative?

It depends.  While the ETS does not require employers to pay for any costs associated with testing, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. OSHA has also noted that the ETS also does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.

What happens if an employee tests positive for COVID-19?

Regardless of COVID-19 vaccination status or any COVID-19 testing required under the ETS, employers must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee:

• Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
• Meets the return to work criteria in CDC’s “Isolation Guidance”; or
• Receives a recommendation to return to work from a licensed healthcare provider.

Are employers required to provide paid time off for vaccination and vaccination side effects?

Yes, all covered employers are required to provide paid time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.

What’s Next?

To date, legal challenges to the OSHA COVID-19 ETS have been filed in the 5^th, 6^th, 8^th and 11^th U.S. Circuit Court of Appeals challenging the constitutionality of the ETS.  The ETS has even been stayed by the 5^th Circuit which includes Texas, Louisiana, and Mississippi. 

Thus far, no such challenge has been filed by New Jersey or New York. Nonetheless, covered employers should prepare to implement a mandate or testing regimen, while staying apprised of legal updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Jorge R. de Armas or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.