By: Michelle M. De Oliveira, Esq.
On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of OSHA’s Emergency Temporary Standard (ETS), issued just two days prior. This in turn means that the ETS’ enforcement is temporarily halted. Additional briefs will be filed with the court today (11/8) and tomorrow (11/9) in support of the parties’ arguments relating to the ETS’ legality. Although the future of the ETS is unknown at this point, employers are encouraged to continue preparing and planning for the ETS’ implementation. We will continue to closely monitor, and report on, the legal developments relating to the ETS.
For those of you who missed the K&S Client Alert with the ETS’ overview, we include the overview below.
On November 4, 2021, OSHA released the ETS that we had been waiting for following the Biden Administration’s September 9th announcement of mandatory COVID-19 vaccination or weekly testing for employers with 100+ employees. The Biden Administration had also issued two executive orders relating to vaccinations and COVID-19 safety on September 9th.
Generally, the ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, or a policy whereby employees must get vaccinated or undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination.
Covered employers have until January 4, 2022, to ensure compliance with the ETS. Employees will need to be fully vaccinated by then or employers will be required to implement the weekly COVID-19 testing requirement as of January 5th.
Starting December 5, 2021, employees will be entitled to paid time off (up to 4 hours) to get vaccinated and sick leave to recover from any side effects. Additionally, employers must ensure that unvaccinated employees wear masks in the workplace, as of December 5, 2021.
Covered Employers & Exceptions
The ETS applies to employers with 100 or more employees. However, certain employers are excluded if: (a) the workplace is covered by the federal contractor guidance (i.e., the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors) (See Client Alert on Federal Contractor Guidance); or (b) they provide healthcare services or healthcare support services under 29 CFR § 1910.502.
Covered Employees & Exceptions
Generally, all employees working for an employer with 100 or more employees fall under the ETS. The following employees, however, are excluded from the requirements:
- Employees who do not report to work where others, such as co-workers or customers, are present.
- Employees who work from home.
- Employees who work exclusively outdoors.
Employers Must Implement A Policy Regarding Mandatory Vaccination, Or Mandatory Testing In Lieu Of Vaccination
The ETS imposes a mandatory workplace policy requirement. Specifically, employers must establish:
- a written mandatory vaccination policy, requiring employees to be fully vaccinated; or
- a written policy whereby an employee who is not subject to the mandatory vaccination policy must choose to either be vaccinated or provide proof of regular testing and wear a face covering.
A vaccination policy must require that all employees be vaccinated as soon as practicable, unless the employee (a) cannot get vaccinated for medical reasons, (b) needs to delay getting vaccinated for medical reasons, or (c) is entitled to a reasonable accommodation because of a disability or a sincerely held religious belief.
COVID-19 testing can only be self-administered and self-read if observed by the employer or an authorized telehealth provider.
Proof of Vaccination
Employers must determine each employee’s vaccination status and whether the employee is fully vaccinated—and employers must require each employee to provide proof of vaccination status. Acceptable proof of vaccination status includes:
- record of immunization from a health care provider or pharmacy;
- copy of the COVID-19 vaccination record card;
- copy of medical records documenting the vaccination;
- copy of immunization records from a public health, state, or tribal immunization information system; or
- 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 or clinic site administering the vaccine.
An employee attestation of the employee’s vaccination status may be permissible in circumstances in which the employee cannot obtain the necessary proof. The ETS provides specific language that must be included in employee attestations, and employers should ensure that they adhere to such requirements when obtaining an employee attestation.
Employers must maintain a record of each employee’s vaccination status, along with a roster of each employee’s vaccination status. Employers should note that these records are deemed confidential, private medical information.
If an employer ascertained an employee’s vaccination status before the ETS’ release, then the records of that ascertainment may be acceptable proof of vaccination.
Employer Support of Vaccination
An employee is entitled to paid time off (up to 4 hours), including travel time, to get vaccinated. Employees are also entitled to “reasonable time and paid sick leave” for recovery from adverse side effects from the vaccine.
Unvaccinated Employees: COVID-19 Testing & Facial Covering Requirements
Unvaccinated employees must undergo regular COVID-19 testing. Testing requirements vary depending on how often the employee is in the workplace (defined as where the employer’s work or operations are performed) as follows:
- employees reporting to the workplace at least once every 7 days: must be tested at least once every 7 days; and report the results to the employer no later than the 7th day after the date on which the employee last provided a test result.
- employees who do not report during a period of 7 or more days to a workplace: must get tested within 7 days before returning to the workplace and give results to the employer upon return to the workplace.
Employers must retain proof of the test results, again, as confidential and private medical records.
Employees who do not provide the required test results need to be excluded from the workplace until a test result is provided. Moreover, employees who test positive for COVID-19 do not need to undergo testing for 90 days after the positive test result.
Moreover, unless a limited exception applies, unvaccinated employees must wear a face covering when indoors and when in a vehicle with another person for work-related purposes.
Cost Associated With COVID-19 Testing
According to the ETS, employers are not required to pay for COVID-19 testing. Unsurprisingly, however, it also states that other laws, regulations, or collective bargaining agreements may require employers to pay for the cost.
Notification Regarding Positive COVID-19 Test Result
Regardless of vaccination status, employers must: (a) require each employee to promptly notify them of a positive test or diagnosis, and (b) immediately remove that employee from the workplace and keep them removed until the employee receives a negative test result, is cleared to return to work by a licensed healthcare provider, and complies with applicable CDC guidance.
OSHA Reporting and Records
Employers must carefully attend to the ETS’ reporting and record retention requirements. For example, employers must, among other things, report to OSHA: (a) each work-related COVID-19 fatality within 8 hours of the employer learning of the death, and (b) each work-related COVID-19 hospitalization within 24 hours of the employer learning of in-patient hospitalization.
There is no doubt that the ETS imposes significant requirements on employers with 100 or more employees. As noted above, although the ETS’ future remains unknown because of the November 6th decision from the United States Court of Appeals for the Fifth Circuit, we encourage employers to develop a strategy and plan to ensure compliance as if the ETS were going to take effect. Employers are encouraged to speak with a K&S employment attorney to explore how to best implement the ETS in your own workplace.
We will continue to monitor and report on related legal developments, and those with questions are encouraged to contact a K&S attorney.
This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax or professional advice or services. You should seek specific detailed legal advice prior to taking any definitive actions.