On 11/5/2021, OSHA issued its ETS (Emergency Temporary Standard) implementing President Biden’s vaccine mandate for employers of 100 or more. (OSHA published a separate ETS for healthcare settings, not addressed in this alert.)

OSHA’s information page regarding the new ETS is here. It includes a 28-minute webinar by OSHA, a FAQ sheet by OSHA, a fact sheet by OSHA, a general summary by OSHA, as well as a summary by OSHA of the reporting requirements.

Effective Date, Compliance Dates, Litigation

The ETS was effective as a statement of federal law immediately on its publication 11/5/2021. General compliance is required by 12/5/2021, to include the policy requirements, mask mandate, recordkeeping and reporting. The sole exception is that mandating vaccines/tests in lieu of vaccination will be required no later than 1/4/2022. Someone who receives their full-final injection on or after 12/21/2021 will not have to be tested in the 2 weeks thereafter as they wait to become fully vaccinated.

OSHA expects the ETS will remain in effect for 6 months after 11/5/2021, though OSHA cautions it may shorten or extend the ETS’ duration.

Because the ETS’ effective date as law was immediate on its publication 11/5/2021, litigation over it commenced almost immediately that same day. At the time of this posting, more than half of the states have filed a variety of lawsuits seeking to invalidate the ETS. Unless a court rules otherwise, though, employers should continue to work towards compliance.

Coverage

When considering coverage, the ETS reaches only some employers, and at those employers, only some employees.

Covered Employers

Employers of 100 or more “at any time the (ETS) standard is in effect” are covered by this ETS. The 100 is counted company-wide, not by location. When counting the 100, all employees are covered, whether full-time or part-time. Employees are counted by the head not FTE; in other words, two part-time employees each working half-time (20 hours per week) do not count as 1 even though together they constitute 1 FTE, rather they count as 2. True independent contractors do not count towards the 100, unless the company is a joint employer. In its preface to the ETS, OSHA offers the following examples (quoting list by OSHA):

• If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
• If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
• If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
• If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
• If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
• If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
• If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
• If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing  agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
• If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
• If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
• Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

Covered Employees

All employees of a covered employer are covered by the ETS, except:

• Employees working in workplaces covered by President Biden’s Government Contractor mandate. Such employees will be protected exclusively by the Government Contractor mandate.
• Employees working in healthcare settings covered by OSHA’s Healthcare ETS.
• Employees who do not report to a workplace where others are present.
• Employees who work from home while they are working from home. However, if the employee “switches back and forth” working between home and in a workplace where others are present, then the employee becomes covered by the ETS while in the workplace. For example, that individual would have to comply with the following vaccination/testing/mask requirements while in the workplace.
• Employees who work “exclusively” outdoors. However, if an individual spends more than “de minimis” time with others while not outdoors for work, then the ETS would apply. OSHA gives as examples of covered workers outdoor-workers individuals who carpool at the beginning and end of the shift, who share a vehicle while at work, who spend time in a jobsite trailer while at work. OSHA says “de minimis” time in a shared space with appropriate protects does not render the outdoor-worker covered, and gives as an example a worker who uses a properly ventillated multi-stall bathroom.

Requirements

Once a company is a covered employer with a covered employee, the requirements are manifold, including the following:

• The company must issue a written policy(-ies) that
  • Either,
    • mandates vaccination for all current and new employees, permitting only the following exemptions:
      • Individuals for whom vaccination is medically contraindicated,
      • Individuals for whom it is medically necessary to delay vaccination,
      • Individuals who qualify for religious or disability accommodations.
      • And for each such individual, the company must require by written policy that they submit instead to weekly testing in lieu of vaccination.
      • And, mandates the wearing of masks in the workplace by unvaccinated individuals, whether or not exempted from the vaccine requirement. In other words, even when exempt from the vaccine mandate by reason of a federal required accommodation or one of the other permitted exemptions above, that exempt individual is only exempt from vaccination. They must undergo weekly testing instead. Also they must wear masks in the workplace even if unvaccinated individuals need not.
    • Or permits vaccination as above so that the worker need not wear a mask, but allows employees who choose not to be vaccinated to undergo weekly tests and wear masks instead without having to be vaccinated. Again though an individual who is permitted not to be vaccinated must not only be tested but also wear a mask even when vaccinated individuals are not required to be masked.
    • Employers may choose either approach.
  • Mandates compliance with other CDC workplace requirements, particularly regarding social distancing.
  • Mandates disclosure to the company of each individual’s vaccination status. The ETS specifies what documentation is sufficient to include the standard vaccine card that we have become familiar with, but it generally does not include, except in limited circumstances, self-attestation. Proof of so-called “natural immunity,” in other words documentation of a prior infection that produced antibodies, is not sufficient.
    • Employers who have already obtained and retained proof of vaccination status may be exempt under certain conditions specified in the ETS, from having to re-request vaccination status.
  • Provides paid time off (or sick leave) to be vaccinated then to recover.
  • Requires individuals to promptly notify the company of a positive test.
  • Informs individuals of certain facts regarding COVID-19 and vaccines.
  • Warns violations will result in discipline up to and including discharge.
• The company must generate a roster of employees reflecting vaccination status.
• The company must remove individuals from the workplace when they contract/test positive for COVID-19.
• The company must meet certain recordkeeping requirements.
  • This includes keeping all vaccination and testing records as confidential medical records.
• The company must meet certain reporting requirements arising out of workplace-related COVID-19 exposures.

As noted above, the testing mandate is delayed until 1/4/2022, companies will need to comply with the other requirements by 12/5/2021, including by adopting the required policy(-ies), requiring masks, generating the required roster, removing infected individuals for the required periods, and complying with the recordkeeping and reporting requirements.

Sample Policies

OSHA has provided a sample policy mandating vaccination and a sample policy mandating masks and testing in lieu of vaccines.

Either-Or

As noted, employers have a general requirement to implement a policy that mandates vaccination. However, employers may opt instead for a policy that mandates vaccination but permits instead testing/masks/etc. in lieu of vaccination. That decision is left to the company’s discretion, and a company can choose one approach or the other, or the company can choose one approach for one workplace, one group of workers in that workplace, one group of workers in one portion of the workplace, etc. In other words a company has the right to adopt the vaccine-mandate approach for all its workers as OSHA urges, or to mix-and-match as the company determines. Again though, in all situations where a person is not required to be vaccinated, they must be required to wear a mask, test weekly, etc.

OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce. An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers. In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework). This approach would comply with the standard so long as the employer complies in full with paragraph (d)(1) and (d)(2) for the respective groups.

Testing

Employees who are allowed not to be vaccinated must undergo weekly testing. This is true whether they are allowed not to be vaccinated due to a religious accommodation, disability accommodation, or as part of the employer’s decision to permit testing in lieu of vaccination. Such individuals must provide the documentation of each negative test within 7 days. The type of testing is specified. No test will be sufficient if it is both self-administered and self-read.

Employees may be required to locate their own tests, have their own tests administered, on their own time and at their own cost. OSHA acknowledges this will be a significant burden but expressly states that it crafted the rule to incentivize workers not to elect testing in lieu of vaccination.

As mentioned above, requiring employers to pay for workplace protections makes it more likely that employees will take advantage of that protection, and in this ETS, OSHA intends to strongly encourage employees to choose vaccination, not regular COVID-19 testing. Because employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.

Tests that show the person has so-called “natural immunity,” in other words, tests that for example confirm an unvaccinated person has antibodies from prior infection are not sufficient to meet the requirement for weekly testing, nor do they exempt the person from the need for vaccination.

Some exceptions exist. For example a worker who has tested positive for COVID-19 cannot be required to provide such weekly tests thereafter for 90 days.

OSHA reminds employers that other laws may apply, so that when an employer who chooses for example to permit the worker to undergo testing during work hours or in the workplace (or even to be vaccinated during work hours or in the workplace), then that employer may have subjected itself to a requirement under wage-hour laws, such as FLSA, to pay for such time.

Masks

The kind of mask, face covering, etc., that is permitted is specifically laid out by OSHA in its ETS. It does not include the more informal kinds of coverings we’ve become used to seeing such as neck buffs. It also does not include an otherwise acceptable mask when worn with the nose or mouth exposed. Employers must ensure that workers who are required to wear masks actually wear them such that they cover the person’s nose and mouth.

Employers need not provide masks to unvaccinated individuals. Employers need not pay for masks. Employers need not form-fit masks.

Unvaccinated individuals need not wear a face covering for the limited time it takes to eat or drink or while alone in a room with proper physical protections, such as closed door, ventilation, etc.

Employees may choose to wear more protective types of masks, such as respirators, if they choose; likewise, fully vaccinated individuals must be allowed to wear masks and face coverings if they would like, even though their vaccination status relieves them of the need to do so.

Paid Time-Off (PTO) or Sick Leave

A reasonable amount of paid time-off (PTO) or sick leave must be provided to be vaccinated and to recover.

To be vaccinated, the time off cannot be substituted with other paid time-off (PTO, vacation or sick leave that the employee might have. It must be fresh paid time off on top of whatever other time off the employee might have accrued. However, it can be capped at 4 hours, even if in a given location it will take the worker longer.

Paid time off to recover after the vaccine can be provided in the form of already-accrued PTO/vacation/sick leave, unless the individual has no such time available, in which case, even if the individual had such a policy available to them but has just used it all, additional fresh time must be provided for recovery. The ETS does not have a formal cap for recovery time, but in its preface, OSHA says it presumes no more than 2 days is reasonable.

Employers need not pay employees who have already been vaccinated for such times. The paid time off provisions are not retroactive.

Employers need not pay other costs related to vaccination, even travel costs for employees in remote locations.

Removal from the Workplace Following Positive Test

As noted, the company’s policy must require workers to promptly report a positive COVID-19 test. This is true whether the test was conducted as part of the weekly test-in-lieu-of-vaccine requirement or otherwise. For example, a non-symptomatic worker who experiences a positive test as part of their personal travel plans (who has to be tested for example prior to boarding a flight to a foreign country for vacation) would have to report the positive.

Any individual who has COVID-19, including as confirmed by a positive test, must be removed from the workplace. Under certain conditions they might be allowed to work not around anyone else, such as from home.

Employees may not be allowed to return to work until:

• A negative nucleic acid amplification test (NAAT) that follows a positive antigen test.
• The employee completes then-current CDC guidelines for isolation, which at this time are:
  • If the employee has no symptoms, 10 days following their positive test,
  • Or, if the employee has had symptoms, the later of 10 days following the onset of symptoms, 24 hours without a fever (unmedicated) and improving other symptoms (not necessarily including loss of taste or smell, which can last much longer),
  • Or, if the employee is released to return to work by a licensed healthcare provider.

Employers are not required — unless otherwise required — to pay for time away from work, though employees may of course use such time as they may have, including PTO/vacation/sick leave. OSHA notes that nothing in the ETS prohibits employees from claiming such time under workers comp laws if the employee can otherwise establish an entitlement to a work-related exposure workers comp claim.

Preemption of State and Local Laws, State OSHA Plans

This ETS is implemented as a law with what is called field preemption. Therefore, it preempts all less-strict or contrary state and local laws. It specifically preempts therefore state laws that conflict with the Biden vaccine mandates, prohibit vaccine passports in the workplace, and prohibit vaccination inquiries in the workplace. OSHA expressly notes this its ETS invalidates laws in at least Arkansa, Arizona, Florida, Montana, and Texas.

States that have their own state OSHA plans and their own state OSHA-type agencies are now required to develop and implement their own variations of the ETS, which must be no less protectful than OSHA’s. State plans must be approved by OSHA itself.

Production of Required Records

Employers must be prepared to produce its policies and roster within 4 hours of request by OSHA, and within end of next business day of a request by an employee or their representative (generally, their union). That roster should reflect employees broken down by their workplaces. Upon request by the Secretary of Labor, all other documents related to this ETS must be provided no later than end of next business day.

Cost of Compliance?

In perhaps the greatest understatement of all time, OSHA anticipates the cost of complying with its ETS, per covered employer, on average across all industries, will be $11,298, for a total nationwide cost of $2,981,347,368. In other words, even at an inconceivable unrealistic low of $11,298 per company, OSHA concedes its ETS is likely to cost $2.9-billion.

Those numbers do not include costs incurred by employees, for example, for testing in lieu of vaccination, which may cost on average $100 per test and as noted above are required weekly for such individuals. In other words, an individual who seeks an exemption from the vaccine mandate due to religious reasons may be coming out of their own pocket to pay more than $2,500 for testing over the course of the ETS’ expected 6-month lifespan, with additional expenditures to ensure they are always wearing a clean and compliant mask while at work.  As noted above, though, OSHA has explicitly said its choice was entirely to disincentivize employees from availing themselves of any option other than vaccination.

Work From Home After The Pandemic?

In an interesting aside, in its preface to the ETS, OSHA reviews recent surveys trying to predict how common work-from-home is likely to be after the pandemic. OSHA looks in particular at one report predicting that, after the pandemic, 22% of full work days post-pandemic will be worked from home, up from 5% pre-pandemic.