Updated December 20, 2021: On December 17, the Sixth Circuit removed the stay on OSHA’s ETS for 100+ employees. The original deadlines remain in place; however, OSHA has stated that it will exercise “enforcement discretion” regarding employers’ compliance with requirements under the ETS. As long as employers are exercising “reasonable, good faith efforts to come into compliance,” OSHA will not issue any citations before January 10 for most of the deadlines, such as developing a written policy and implementing masking rules, and February 9 for testing requirements. Notably, a number of plaintiffs immediately appealed the ruling to the Supreme Court, which might issue another stay pending its review.

Updated November 8, 2021: Promptly after OSHA’s new Emergency Temporary Standard (“ETS”) (applicable to employers with 100 or more employees) went into effect, several lawsuits were filed by states and businesses challenging the rule. On November 6, the US Court of Appeals for the Fifth Circuit issued an order temporarily staying the ETS, while the court considers a pending motion for an injunction. In a filing on November 8 to the Fifth Circuit, the Department of Justice indicated that it expects all similar cases to be consolidated into one Circuit via a multi-circuit lottery to take place on November 16.  

These court developments may not have an immediate impact on employers, but should be considered as organizations prepare to comply with the new ETS. Most of the ETS’s requirements go into effect on December 6, 2021, with some held over until January 4, 2022. By December 6, we may know more about whether OSHA will be allowed to enforce the ETS, but employers should not wait to determine whether they are covered (see below), and covered employers should begin planning for compliance. Covered employers will need this time to decide what type of program to implement, identify employees who may be excepted from the ETS, draft a written policy, collect and properly manage proof of vaccination, set up systems to manage time off for employees to get vaccinated, get ready for face mask requirements, and prepare communications to employees. Waiting until December 6 to get started is a risky strategy if it turns out that the ETS will be in effect. 

Original Article:

On November 4, OSHA released its long-awaited emergency temporary standard (“ETS”) requiring employers with 100 or more employees to adopt, at a minimum, a vaccinate-or-test-and-mask program. Although the ETS is commonly framed as a vaccination mandate, employers may choose to implement a mandatory vaccination program or permit employees to choose either to be vaccinated or provide proof of weekly testing and wear face coverings indoors and in vehicles. Below we provide a summary of the new ETS, and three key takeaways for employers.

When does the ETS take effect?

The ETS takes effect on Friday, November 5, 2021. Employers must begin allowing employees to take time off to get vaccinated, and require unvaccinated employees to wear masks, starting on December 6, 2021. The vaccination / testing requirements will take effect January 4, 2022.

What employers are covered?

The ETS applies to employers with 100 or more employees. The count is based on the company’s entire US workforce (part-time and full-time), not the number of workers per worksite. Independent contractors and employees from staffing agencies are not counted.

There are several important exceptions:

• The ETS does not apply to employers covered by OSHA’s Healthcare ETS or the requirements for federal contractors. The Centers for Medicare and Medicaid Services (CMS) also released separate requirements for Medicare and Medicaid certified providers and suppliers.
• Employees who work from home count toward the 100-person threshold, but they are not required to undergo weekly testing unless and until they return to the physical work space.
• The 22 states with OSHA-approved State Plans have thirty additional days to decide whether to adopt the ETS as-is or to implement a program that is at least as restrictive.
• Employers are free to go above and beyond the ETS’s requirements subject to applicable law.

What requirements does the ETS impose?

Employees must either be fully vaccinated or undergo weekly COVID-19 testing with mask use. Employers must:

• Draft a written policy. Whether a covered employer chooses to mandate vaccinations or implement a vaccinate-or-test-and-mask program, covered employers must create a written policy.
• Support employee vaccination. Covered employers are required to pay for employees’ time to get vaccinated and for a reasonable amount of time to recover from any side effects.
• Verify status. Covered employers must verify the vaccination status of their entire workforce, and maintain appropriate records. Employers have a choice of collecting a vaccination record (such as a card), or requiring the employee to sign an attestation under penalty of perjury if the employee is unable to provide proof of vaccination. These records must be kept as medical records, but they do not need to be kept for the normal 30 year OSHA period.
• Plan for the testing option. Covered employers choosing the test-and-mask option should set up a testing program as necessary (if there are any unvaccinated employees). The OSHA rule outlines the types of permitted tests, exceptions for testing, and record keeping obligations for collecting test results.
• Require masking for unvaccinated employees. Unvaccinated workers must wear a mask in the workplace, and when traveling in vehicles with other co-workers.
• Consider exemption requests. Employers who choose the mandatory vaccination route need to set up a system for handling exemption requests regarding vaccinations. While employees covered by a vaccinate-or-test-and-mask policy do not need exemptions to undergo weekly testing instead of taking the vaccine, employers should still be prepared to consider exemption requests from employees who object to testing or wearing face coverings.
• Plan for positive cases. Covered employers must establish policies for handling positive test results, reporting to OSHA, and managing re-entry to the workplace.
• Communicate with employees. The rule requires covered employers to communicate the ETS requirements to employees, including the benefits of being vaccinated.

Who pays for testing?

OSHA permits, but does not require, employers to pay for testing—but that is not the final answer to the question. Significantly, other laws or regulations may require employers to pay for testing, so it is important to check rules in your jurisdiction. For example, rules in California may require employers to pay for the cost of tests and the time spent to have the testing done. Similar rules may exist under related wage and hour rules at the federal and state level. Also, collective bargaining agreements or other collectively negotiated agreements may impose requirements on employers.

How will the ETS be enforced?

The ETS will be enforced by OSHA or, in states with OSHA-approved State Plans, by the relevant state agency. If OSHA demands a copy of a compliant policy or record of vaccinations, the employer must comply within 4 business hours. OSHA may choose to monitor compliance proactively, or it may start inquiries after a complaint is submitted. OSHA investigates whistleblower complaints aggressively. Employers should provide avenues for employees to voice concerns about health and safety conditions in the workplace and take a look at their anti-retaliation policies and training in order to prevent enforcement action by OSHA.

OSHA may impose penalties of $13,653 for each “serious” violation, with enhanced amounts for “willful” violations.

Key Takeaways

• Key Takeaway #1 - Determine coverage & jurisdictional requirements. Employers should immediately determine if the ETS applies to their operation. If so, and the employer is operating in a state with an OSHA-approved State Plan, the employer may face different rules and timeframes than those in states under federal OSHA oversight. Local jurisdictions may also impose COVID-related requirements above and beyond what is required under the ETS. So it is important to understand the requirements in each jurisdiction in which the employer operates, including rules around compensation for time to get vaccinated and/or the cost of testing.
  
• Key Takeaway #2 - Be aware of stricter rules. The OSHA ETS may not be meaningful for employers whose employees are (or will be) subject to different requirements, such as the Healthcare ETS or rules for federal contractors. Employers subject to rules that are stricter than the ETS need to follow the more stringent requirements. If some employees will be subject to the ETS, but some will be subject to stricter rules, consider whether it makes sense (and is possible) to impose the more stringent requirements on all employees to streamline operational implementation.
  
• Key Takeaway #3 - Prepare now. While the ETS may be subject to legal challenges, including whether it preempts conflicting state laws, and the specific rules and timing of its implementation may vary by jurisdiction, covered employers nevertheless should prepare now to implement the rule’s requirements given the tight timelines contained in the ETS. At a minimum, employers should consider: (1) updating or drafting a policy and any associated forms to align with the ETS; (2) setting up or updating systems for collecting vaccination records and storing confidential medical information appropriately; (3) ensuring stakeholders understand implications for time getting vaccinated, recovering from side effects of vaccination, and undergoing weekly testing; (4) taking additional steps to encourage vaccination and provide information about how to get vaccinated; (5) planning communications to employees about the new requirements and the benefits of vaccination; (6) setting up procedures and providing training for handling exemption requests and considering possible accommodations; and (7) whether it would be helpful to reinforce anti-retaliation messages in order to reduce the risks of potential whistleblower complaints.

To learn more about the OSHA ETS and how best to strategize the impact of the ETS on your organization, please reach out to one of the contacts listed in this alert.