OSHA’s vaccine-or-test emergency rule approved

As we discussed in our prior client alert, President Biden instructed the Occupational Safety and Health Administration (OSHA) to develop an emergency temporary standard requiring private employers with 100 or more workers to either mandate vaccination or test employees for COVID-19 on a weekly basis. At the president’s direction, on October 12, 2021, the Department of Labor (DOL) submitted its draft COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to the White House’s Office of Information and Regulatory Affairs (OIRA).

Less than a month later, following the completion of OIRA’s review, the controversial ETS was filed yesterday with the Federal Register and is set to take effect for six months starting on November 5, 2021, when it is expected to be published in the Federal Register. As has been anticipated for the last few months, the ETS will impose new COVID-19 related requirements on employers of nearly 84 million workers.

Below we discuss key provisions of the ETS and actions for covered employers to consider now.

Covered employers

The ETS applies to private employers with a total of 100 or more US-based employees as well as to state and local government employees in states with OSHA-approved State Plans. There are only limited exceptions for healthcare or support services and federal contractors or subcontractors subject to more rigorous standards (eg, the Healthcare Emergency Temporary Standard or Executive Order 14042, respectively).

The 100-employee threshold for private employers is firm- or corporate-wide and includes both full-time and part-time employees, but it does not include independent contractors or workers from a staffing agency. Notably, while such individuals are included in the 100-employee threshold, the ETS does not apply to employees who work from home, work exclusively outdoors or do not report to a workplace where other individuals are present.

While the ETS does not currently apply to smaller employers, such employers are not yet out of the woods. OSHA has stated that it needs more time to assess the capacity of smaller employers to implement such a standard without undue disruption.  As a result, the ETS may yet be expanded to employers with fewer than 100 employees.

Key provisions

Mandatory vaccination or weekly COVID-19 Tests

The most controversial provision of the ETS is its requirement that workers of covered employers either be (i) fully vaccinated or (ii) tested weekly for COVID-19. The definition of “fully vaccinated” is the same definition that has been utilized by the US Centers for Disease Control and Prevention (CDC) for some time. According the ETS, an employee is “fully vaccinated” two weeks after the second dose of the Pfizer or Moderna COVID-19 vaccines or after a single dose of Johnson & Johnson vaccine.

To comply with the ETS, covered employers must “establish, implement and enforce” either:

• A written mandatory vaccination policy that requires all employees to be fully vaccinated, except for those employees (i) for whom the vaccination is medically contraindicated, (ii) for whom medical necessity requires a delay in vaccination or (iii) who are legally entitled to a reasonable accommodation for protected reasons (such as disability and sincerely held religious beliefs, practices or observances conflicting the vaccination requirement) or
• A written policy allowing employees, in lieu of vaccination, to elect to wear a face covering in the workplace and undergo weekly COVID-19 testing (if in the workplace at least once a week) or within seven days before returning to work (if away for a week or longer). Such a policy must include a testing exception for those who have received a positive test or diagnosis for COVID-19 in the prior 90 days (due to the risk of false positives).

Generally, OSHA will not require those employers who choose the testing-in-lieu-of-vaccination option to cover the costs for the required COVID-19 testing for those workers who, for whatever reason, do not get fully vaccinated. Instead, absent the promulgation of other laws or regulations, or collectively negotiated agreements or collective bargaining agreements requiring employers to do so, unvaccinated workers will be expected to pay for their own testing if they are not fully vaccinated. However, nothing prohibits employers from voluntarily assuming the costs associated with such testing, and employers must consider the applicability of more protective state laws that may require employers to reimburse employees for business-related expenses (eg, in California or Illinois).

Face coverings for workers not fully vaccinated

In what may be a harbinger of an eventual update to the CDC’s current masking guidance, the ETS sets forth that fully vaccinated employees need not wear face coverings when indoors.  However, workers that are not fully vaccinated will generally be required to wear face coverings when indoors or 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
• For a limited time for identification purposes in compliance with safety and security requirements
• When employees are wearing respirators or other face-related personal protective equipment or
• Where the employer can show the use of face coverings is infeasible or creates a greater hazard.

Relatedly, employers must permit all employees and customers, regardless of vaccination status, to wear face coverings unless it creates a serious workplace hazard (such as interfering with the safe operation of equipment).

OSHA will permit a wide range of face coverings, including homemade masks. Specifically, under the ETS, a “face covering” refers to a covering that (1) completely covers the nose and mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven; (3) is secured to the head with ties, ear loops or elastic bands that go behind the head; (4) fits snugly over the nose, mouth and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures or other openings. This definition of face covering allows various different types of masks, including clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language, respectively.

As is the case with the weekly COVID-19 testing requirement, OSHA will not require employers to pay for any costs associated with required face coverings. However, state or local law, as well as collective bargaining agreements, may be more protective and require employers to cover such costs. Employers are encouraged to keep in mind that this standard is unusual in comparison to other OSHA rules that typically require employers to pay for medical tests involving work-related health hazards and providing protective clothing.

Paid time off for vaccination or related side effects

Covered employers must provide reasonable time, including up to four hours of paid time off, for each primary vaccination series dose (including related travel time).

Similarly, employers must provide reasonable paid sick leave to recover from side effects following each vaccine dose. This paid sick leave may be in the form of already-accrued paid sick leave, if available.

Response to COVID-19 in the workplace

Covered employers must require employees to promptly notify them of any positive COVID-19 test or diagnosis, regardless of vaccination status. Such employees must immediately be removed from the workplace and may not return until all applicable return-to-work criteria are satisfied.

Specifically, an employee who tested positive for or was diagnosed with COVID-19 may not return to the workplace until one of the following is met:

• The employee receives a negative result on a confirmatory test (eg, PCR) following a positive result on an antigen test
• The CDC criteria for Isolation Guidance is fulfilled or
• When recommended by a licensed healthcare provider.

Similarly, employees who are not fully vaccinated and who fail to provide the negative test must be removed from the workplace.

In addition, the ETS clarifies employer reporting requirements related to COVID-19. Specifically, the ETS requires covered employers to report “work-related” COVID-19 fatalities to OSHA within 8 hours of learning about the fatality and “work-related” COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. For purposes of this ETS, when evaluating whether a fatality or in-patient hospitalization is the result of a “work-related” case of COVID-19, employers must follow the criteria in OSHA’s recordkeeping regulation at 29 CFR 1904.5 for determining work-relatedness.

In general, a COVID-19 injury or illness is classified as “work-related” if an event or exposure in the work environment either caused or contributed to the resulting exposure. If the COVID-19 exposure event likely occurred within the employee’s work environment, and the subsequent illness led to either death or in-patient hospitalization, reporting of this incident would be required. However, an employer is not required to report a fatality or hospitalization if the employer determines that exposure to COVID-19 clearly did not occur in the workplace (eg, the employee had been working remotely or was on vacation at the time the employee contracted COVID-19).

Provide information to employees

The ETS requires employers to provide employees the following, in a language and at a literacy level the employees understand:

• Information about the requirements of the ETS as well as workplace policies and procedures established to implement the ETS
• The CDC document entitled “Key Things to Know About COVID-19 Vaccines”
• Information about protections against retaliation and discrimination and
• Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Record-keeping requirements

An additional new requirement states that covered employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status. In addition, those employers who permit weekly testing as an alternative to vaccination must also maintain record of each test result as a confidential employee medical record while the ETS is in effect.

By the end of the next business day after an employee request, covered employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone with written consent of that employee. In addition, employers must make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace, along with the total number of employees at that workplace.

Employers are not required to submit their written policy to OSHA unless requested. However, the Assistant Secretary may request the employer’s written plan for examination and copying, and the employer must provide its written policy to the Assistant Secretary for examination and copying within 4 business hours of such a request.

Deadlines for compliance

The ETS contains two significant deadlines, as follows:

• December 5, 2021: Covered employers must have their compliance program in place, offer paid time off for vaccinations, provide paid sick leave for related side effects preventing work and require unvaccinated workers to wear masks.
• January 4, 2022: Employees of covered employers must be fully vaccinated or must submit documentation for a verified negative COVID-19 test to the employer every seven days.

Employers are urged to keep in mind the risks for failing to comply with these deadlines and other ETS requirements. If a covered employer is inspected and cannot produce records showing compliance with the ETS, OSHA has up to six months to issue citations. Citations may vary based on company size and other factors. However, each serious violation could result in a fine of up to $13,653. Willful or repeat violations could result in fines of up to $136,532. After citation, companies may appeal such fine to an independent judicial panel or reach a settlement with OSHA for a reduced penalty. Employers are also encouraged to keep in mind that, if the Build Back Better Act becomes law, the maximum fines for violation of any OSHA rules could be raised to $70,000 for serious violations and $700,000 for willful or repeat violations.

State rules and challenges are expected

As this is a federal standard, states and US territories with their own OSHA-approved occupational safety and health plans – 28 in total – must either amend their standards to be identical to, or at least as effective as, the ETS. Adoption of such an ETS must be completed within 30 days of the promulgation date of the ETS. States that fail to implement such a rule face the possibility that OSHA could take over inspections in the state, but that process may take months or years to complete.  Incidentally, on October 19, 2021, OSHA sent courtesy letters to the states of Arizona, Utah and South Carolina informing them that they face wholesale decertification of their OSHA state plans for failure to protect employees related to OSHA’s Healthcare Emergency Temporary Standard.

The ETS also purports to pre-empt all state and local requirements that ban or limit the authority of employers to require vaccination, face covering or testing for COVID-19. However, states like Texas have sought to either limit or ban vaccine mandates, like the ETS, and state challenges to the ETS are imminent. Indeed, just hours after the ETS was published, governors or attorneys general in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, New Hampshire, Oklahoma and South Dakota announced that they would file lawsuits against the ETS. As of the time of this publication, the following states have already sued to enjoin the ETS from taking effect: Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.

Similarly, about 19 states have recently filed suit to stop the federal vaccine mandate applicable to federal contractors, which foreshadows a comparable response to the ETS from these states. As such, we can expect to see a similar challenge now that the ETS has been issued by the Biden Administration. We can also expect to see legal challenges filed by employers subject to the ETS.

Next steps

The ETS requires covered employers to determine whether they will adopt a mandatory vaccination policy or a policy allowing unvaccinated employees to be tested weekly. Regardless of which option is chosen, prudent employers will consider developing a robust and clear reasonable accommodation policy and procedure to address requests for exemptions from vaccination, testing and/or face covering requirements, and to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request.

In addition, covered employers are strongly urged to prepare to implement a system for inquiring about employees’ vaccination status, without any additional medical or family history information, and maintaining such information in a confidential manner. Similarly, employers who permit weekly testing in lieu of vaccination are strongly encouraged to develop a plan for tracking test results and maintaining such records confidentially.

Overall, covered employers are encouraged to either develop a compliant COVID-19 prevention program or evaluate their current program to ensure compliance with the ETS, in light of any related state or local requirements that may already exist or arise.

If you have any questions regarding this development or other COVID-19 related requirements, please contact the authors, your DLA Piper relationship attorney, or the DLA Piper Employment group at CoronavirusEmployment@dlapiper.com.

UPDATE 11/8: On November 6, 2021, the US Court of Appeals for the Fifth Circuit granted a stay of OSHA’s ETS in response to a petition from several businesses, advocacy groups and the states of Texas, Louisiana, Mississippi, South Carolina and Utah. Citing "grave statutory and constitutional" issues with the rule, the court stayed the mandate and ordered briefing on the petitioners’ motion for a permanent injunction to be completed by November 9, 2021. Other legal challenges, including a lawsuit in the Eleventh Circuit by several private employers and the states of Florida, Georgia and Alabama, are pending.  

UPDATE 11/15:  On November 12, 2021, the US Court of Appeals for the Fifth Circuit issued an order extending its initial November 6, 2021 stay of OHSA’s ETS.  The order grants petitioners’ request, which was not limited to a particular jurisdiction, for an order “staying the enforcement” of the ETS.  Specifically, OSHA is ordered to “take no steps to implement or enforce the [ETS] until further court order.” Such further court order will come from the federal judicial circuit that gets randomly assigned to review the consolidated cases currently pending in 11 of the 12 US circuit courts of appeals.  Thereafter, it is anticipated that the consolidated matter will be brought before the US Supreme Court for an ultimate determination.  We will continue to monitor these developments and provide further updates.  In the meantime, employers are encouraged to continue to plan for implementation of the ETS, in some form, pending a final determination regarding the ETS’s fate.