The Occupational Safety and Health Administration’s hotly anticipated emergency temporary standard (ETS) requires covered employers to develop, implement, and enforce either a mandatory Covid-19 vaccination policy, or a policy requiring employees to get vaccinated or undergo regular Covid-19 testing and wear a face covering.
The ETS was published in the Federal Register on Nov. 5 and is effective immediately. Because this is an emergency standard, it will be in effect for 180 days. After that, to remain in effect, it must be promulgated as a final rule. Comments on the standard, including whether it should become a final rule, may be submitted until Dec. 6, 2021.
Since issuance, a number of lawsuits have been filed challenging the ETS, including a request to enjoin the ETS from going into effect. The U.S. Court of Appeals for the Fifth Circuit suspended implementation on Nov. 6. Dozens more challenges have been announced by states and private employers. However, until a court says otherwise, the ETS remains in effect.
As workplaces nationwide evaluate the ETS, here are the top six questions surrounding implementation.
Which Workplaces Must Comply?
The ETS applies to employers with 100 or more total employees. For purposes of counting employees, it clarifies that employees should be counted in the aggregate and includes all employees across all U.S. locations, including part-time employees. It does not include independent contractors.
However, even if an employer is covered, the requirements do not apply to employees who report to a workplace where others are not present, employees working from home, or employees who work exclusively outdoors.
The ETS does not apply to federal contractors or employees subject to the Safer Federal Workforce Task Force guidance or health-care facilities subject to a separate emergency temporary standard.
What Does the Standard Actually Require?
Covered employers are required to establish, implement and enforce either: (1) a written mandatory vaccination policy, including a vaccine requirement for new and existing employees unless they are legally entitled to a reasonable accommodation under federal law; or (2) a written policy allowing employees not subject to a mandatory vaccination policy to either be vaccinated or provide proof of regular testing (every seven days) for Covid-19 and wear a face covering while at the workplace.
Testing cannot be self-administered and self-read by the employee; it is required to be overseen by the employer or authorized health-care professional. Employers must require all vaccinated employees to show proof of vaccination and retain both vaccination records and test results.
When Do Employers Have to Comply?
The ETS took effect Nov. 5. However, most of the requirements are not required until 30 days after publication (Dec. 5).
This includes the requirements for employers to develop policies implementing the standard, to determine vaccination status of employees, to provide paid time off for vaccination and vaccine side effects, to enforce face covering requirements, and to provide specific information to employees about Covid-19, vaccinations, and relevant laws regarding anti-retaliation and providing false information.
If the vaccine or test alternative is selected, employers are not required to comply with the requirement that employees obtain Covid-19 tests every seven days until 60 days after publication (Jan. 4, 2022).
Must Employers Pay Costs of Vaccination or Testing?
The ETS requires employers to pay for certain costs related to vaccination. While there is no cost to be vaccinated, employers must provide up to four hours of paid time (including travel time) at an employee’s regular pay rate if an employee obtains the vaccine during working hours.
Employers are not required to provide paid time if an employee chooses to receive the vaccine during non-working hours. Employers are also required to provide “reasonable time and paid sick leave to recover from side effects.” These paid time off requirements apply only to primary vaccine doses and not to optional boosters.
If employers select the vaccine or test compliance option, the ETS allows employers to shift the costs of Covid-19 testing to employees. However, it notes that employers “may” have obligations under other laws, regulations, or collective bargaining agreements to pay those costs.
Employers should consult with counsel regarding whether state law or other applicable statutes, rules, or regulations require them to pay for the cost of testing or for time spent getting tested.
What If My State Prohibits Vaccine Mandates?
States like Texas, Montana, and Missouri have executive orders or legislation purporting to prohibit vaccination mandates. The ETS expressly preempts inconsistent state and local requirements relating to vaccination, including requirements that ban employers’ ability to mandate vaccines, face coverings, or testing.
OSHA standards have previously been held to preempt conflicting state laws. There are various factors that can make this analysis more complicated, including whether federal OSHA standards will preempt conflicting state laws in-state plan states and whether existing laws can be read together with the ETS.
In any event, employers should be prepared to comply with the ETS unless and until it is stayed or struck down.
My State Is an OSHA State Plan State; Must We Comply?
Private employers in 29 states are subject to federal OSHA jurisdiction. In those states, the state does not have its own approved health and safety program so federal OSHA will implement the new standard. The remaining 21 states must implement the new standard or a standard that is at least as effective within 30 days.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Brittany Barrientos is a partner at Stinson LLP and serves on the firm’s Covid-19 task force. She assists clients with environmental, health, and safety regulatory requirements, including those arising under OSHA.