Recent Court Order Complicates Compliance With OSHA's Emergency Temporary Standard Requiring Vaccination Or Testing For Employers With 100 or More Employees

In response to President Biden’s Executive Order (EO) discussed in our previously published advisory (available here), the federal Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) on November 4, 2021 (available here), providing explicit guidance in relation to the EO’s mandate requiring private employers with 100 or more employees to implement COVID-19 vaccination or testing for their employees.

On November 6, the US Court of Appeals for the Fifth Circuit issued a stay of OSHA’s ETS, noting that the EO’s mandate raises statutory and constitutional issues. It is currently, unclear how long the stay will last. Since employers may be faced with a need to comply, it is critical that they familiarize themselves with the ETS’s requirements.

Effective Date

The ETS took effect on November 5, 2021. Although there is presently a stay in effect, depending on the outcome in the case noted above, OSHA could begin enforcement of the ETS on December 6, 2021 for all portions of the ETS other than the mandatory testing requirements for unvaccinated employees, which begins January 4, 2022. OSHA anticipates that the ETS will remain in effect for six months but will update the effective date as necessary.

Covered Employers And Employees

The ETS covers all U.S. employers with 100 or more employees (including part-time employees, remote workers, and seasonal workers) during the period that the ETS is in effect. OSHA provides that employers must consider the company-wide employee count (and not the count at a specific location or site) for purposes of determining coverage.

The new ETS does not apply to:

  • Employers covered by President Biden’s Executive Order applicable to federal contractors and subcontractors (see Executive Order here; see also Safer Federal Workforce Task Force implementation guidance here); and
  • Healthcare providers subject to OSHA’s COVID-19 healthcare workers’ ETS (available here).

Additionally, while covered employers must include the below employees for purposes of determining coverage under the ETS, employers do not have to implement the ETS in relation to the following:

  • Employees who do not report to a workplace where other coworkers or clients are present;
  • Employees working from home; and
  • Employees who exclusively work outdoors.

Further, while the ETS do not require employers to include independent contractors or employees provided by staffing agencies in the employee count, OSHA states that covered employers may require staffing agencies to comply with the employer’s vaccine, testing and/or masking policies.
Requirements Under ETS
The ETS requires covered employees to either mandate that covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.  

Considerations Involving Vaccine Mandates

The ETS clarifies that covered employers may implement mandatory COVID-19 vaccine policies for all covered employees except for:

  • those for whom a vaccine is medically contraindicated;
  • those for whom medical necessity requires a delay in vaccination; or
  • those 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.

Where an employee has a medical condition, disability or sincerely held religious belief, employers covered by the ETS must follow the federal Equal Employment Opportunity Commission’s guidelines with respect to engaging in an interactive process to determine if reasonable accommodations may be available.
The ETS also notes that covered employers are free to implement partial mandatory vaccination policies that only apply to a portion of their workforce.
To comply with the ETS, covered employers must provide the following for employees who receive the COVID-19 vaccine:

  • A reasonable amount of time for each employee to receive each vaccine dose;
  • Up to four hours of paid time, including travel time, at the employee’s regular rate of pay, to receive the vaccine dose(s); and
  • “Reasonable time” and paid sick leave to allow employees to recover from side effects experienced following any vaccine dose.

Weekly Testing For Unvaccinated Employees
Covered employees who do not provide proof of complete vaccination must provide proof of FDA-approved COVID-19 testing every seven days. In the event that employees fail to do so, the ETS directs covered employers to remove such employees from the workplace until they comply. The ETS does not require employers to pay any costs associated with weekly testing.

Face Coverings

Under the ETS, covered employers must ensure that employees who do not provide proof of complete vaccination wear a face covering indoors or in a vehicle with another person, except in certain circumstances. As with testing, covered employers are not required to pay the cost of face coverings.
The ETS requires covered employees to provide proof of vaccination status, in one of the following forms:

  • immunization record from a healthcare provider or pharmacy;
  • a copy of the COVID-19 Vaccination Record Card;
  • a copy of medical records documenting vaccination;
  • any other official documentation that reflects the vaccine(s) were administered, the date of administration, and the name of the healthcare professional/site that administered the vaccine(s); or
  • a signed attestation from the employee which may be subject to criminal penalties.

Covered employers must maintain employees’ vaccine records as well as test results for the entire duration the ETS is in effect and are required to provide such records to OSHA upon request.
Additional Requirements

The ETS also have detailed requirements regarding covered employees’ obligation to notify the employer of any COVID-19 positive tests, employers’ notice obligations to employees, as well as the reporting of COVID-19 fatalities and hospitalizations to OSHA.
Interaction With State Plans
The federal ETS directs states to adopt either the federal ETS, or an ETS that is “at least as effective” as the federal ETS, within 30 days of the date the federal ETS is published in the federal register. Where states already have standards in place—such as California’s ETS—such states must either amend their standards to be identical or “at least as effective as” the new standard, or show that an existing state standard is “at least as effective” as the new Federal standard. The federal ETS enables states to adopt more protective occupational safety and health requirements. Therefore, Cal/OSHA could impose more stringent requirements, such as requiring employers to pay for the weekly testing (which is presently not required under the federal ETS).
Penalties For Non-Compliance
Under OSHA, “serious” violations are fined at $13,653 per violation and “willful” or recurring violations are fined at $136,532 per violation.

What should employers do now?

  • Employers must closely track the status of the pending stay on the ETS to assure they are aware if it becomes enforceable.
  • Employers should familiarize themselves with the requirements of the ETS and prepare to comply with it if the court lifts the current stay on enforcement.

If you have any questions about OSHA’s newly-issued ETS, including the interplay between the federal ETS and California’s state plan, or any other issue relating to employment law, please contact one of our attorneys listed below.

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