By Carlie Bacon and Erin Roycroft
On November 4, 2021, OSHA released its long-anticipated rule related to COVID-19 vaccines in the workplace. The stated purpose of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) is to “address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements.” Employers will no doubt have questions about how to comply with the ETS, and the main points are addressed below.
Which businesses are covered by the rule?
The first thing to know is that the ETS does not apply to all employers. Only those who employ 100 or more employees at any time the ETS is in effect are covered by the rule (“covered employers”):
- If an employer has 100 or more employees on the effective date, then the employer is covered by the ETS for its entire duration – even if its employee count later drops below 100.
- If an employer who was not covered as of the effective date later employs 100 or more employees, then it will be covered as of the date it reaches 100 employees and for the duration of the ETS.
The ETS requirements do not apply to employers covered under other vaccine rules. Federal contractors and subcontractors that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, are not subject to the ETS. Nor are facilities that participate in Medicare and Medicaid, which are covered by the Centers for Medicare & Medicaid Services Omnibus Health Care Staff Vaccination Interim Final Rule, also announced on November 4, 2021.
The ETS requirements do not apply to employees of covered employers who work remotely or exclusively outdoors; however, those employees still count toward determining whether an employer is covered.
What does the rule require?
Covered employers have 30 days, or until December 6, 2021, to do the following.
- Implement a policy: Employers must either (1) implement a written, mandatory vaccination policy; or (2) implement a written policy allowing employees to choose to be fully vaccinated, or provide proof of regular COVID-19 testing and wear a face covering (subject to additional requirements and some exceptions).
- Provide accommodations: Employees with disabilities or sincerely held religious beliefs, practices, or observances that are in conflict with a vaccine policy may be entitled to a reasonable accommodation, absent an undue hardship to the employer.
- Provide information to employees: Whether as part of its written policy or in some other manner, employers must:Inform employees about the ETS requirements;
- Provide a copy of the CDC's "Key Things to Know About COVID-19 Vaccines";
- Provide information about the OSH Act’s anti-discrimination and anti-retaliation provisions; and
- Provide information about criminal penalties under the OSH Act for knowingly supplying false statements or documentation.
- Testing requirements: The ETS offers testing as an alternative to vaccination. Employers can adopt a policy that permits employees to choose between getting vaccinated and submitting to weekly testing. Unlike other parts of the rule, employers have until January 4, 2022, to begin requiring weekly testing.
- Employers are not required to pay for the COVID-19 testing under the ETS – note, however, that Oregon currently requires employers to pay for testing, including the cost of the test and the time worked.
- “Regular” testing means weekly (for employees who report to the workplace at least once per week), or within seven days of an employee reporting to the workplace (for those who are away from the workplace for a week or longer).
- Employees who fail to provide a test result must be excluded from the workplace until they do so.
- Employees who test positive for or are diagnosed with COVID-19 are exempted from this testing requirement for 90 days thereafter.
- Determine employee vaccination status: Employers must collect proof of employees’ full or partial vaccination status.
- Acceptable forms of proof include immunization records, vaccination cards, medical records, other “official documentation,” and employee attestation (subject to additional requirements).
- Employees unable to provide such proof must be treated as unvaccinated.
- Recordkeeping and reporting requirements:
- Employers must maintain a record of each employee’s vaccination status, proof of vaccination, and all COVID-19 test results (if applicable). Employers must make an individual employee’s information available to the employee upon request.
- Employers must maintain a roster of vaccinated employees.
- All records and the roster are considered confidential employee medical records and should not be maintained in the employee’s personnel file.
- Employers must provide the total number of employees and number of vaccinated employees to employees upon request.
- Provide paid time off to employees to travel to and from and receive vaccinations and to recover from side effects.
- Notification and removal: Employers must require employees to notify the employer if they test positive for or are diagnosed with COVID-19, and remove such employees from the workplace until they meet the ETS’ criteria to return to work.
What about businesses in states that implement their own rules?
While the federal rule will preempt conflicting state and local requirements (such as those in Montana and Texas), states with OSHA-Approved State Plans, including Oregon, Washington, and California, are required within 30 days of the ETS taking effect to enact their own rules that are at least as effective as the federal rule. In other words, employers in states with OSHA-Approved State Plans may be faced with more onerous requirements. Tonkon Torp expects Oregon OSHA to issue a state rule and will provide additional guidance for Oregon employers when it comes available.
What about those subject to collective bargaining agreements that already negotiated around COVID vaccination?
Similar to state rules, collective bargaining agreements or other collectively negotiated agreements may contain terms that exceed the federal requirements. However, to the extent that a collective bargaining agreement requires less protection than the ETS, the ETS will control.
When does the ETS take effect, and will there be an opportunity to submit public comment?
The ETS took effect on November 5, 2021. As explained above, employers have until December 6, 2021, to comply with most of the requirements. If the employer chooses to permit employees to opt for a testing alternative, employers have until January 4, 2022, to implement a testing policy. The public has until December 6, 2021, to submit comments on any aspect of the ETS and whether the ETS should become a final rule, as well as if the rule should be extended to smaller employers.
What are the penalties for failing to comply?
OSHA may inspect businesses of its own accord, or may investigate in response to complaints. Non-compliant employers face a $13,653 penalty for each “serious violation,” and a $136,532 penalty for willful or repeated violations.
Key takeaways for employers
Employers should determine whether they are covered by the ETS as soon as possible, and if covered, promptly take steps to comply with all provisions—including implementing a written policy—by December 6, 2021, and the testing requirement (if applicable) by January 4, 2022. Oregon employers should stay tuned for Oregon OSHA’s forthcoming rule and likely additional requirements. Given the steep penalties for noncompliance, employers would be wise to regularly review and revise their policies as changes to the federal and/or state rules take effect.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.