Answers and More Questions from OSHA’s Latest COVID ETS

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I. Introduction
Today, less than two months after receiving the directive from President Biden, OSHA released its Emergency Temporary Standard that will affect two-thirds of the nation’s private workforce.

While most of the 490-page document includes detailed legal and scientific discussion (presumably in an effort to pre-empt expected legal challenges), the 15 or so pages of the ETS itself along with a detailed FAQ provide employers with answers to some, but not all of the questions anticipated by employers in the months-long lead up, as well as raising entirely new questions.

II. Are you a Covered Employer under the ETS?
The first and most basic question as to how the 100-employee threshold would be calculated and whether employers would be covered by the ETS has been largely answered through today’s materials: OSHA directs employers to make this determination as of the effective date of the standard (i.e. tomorrow, November 5, 2021 when the ETS is officially published) and should be made based on the total number of employees who work at any location an employer has in the United States, including employees who work remotely. OSHA specifically includes part-time employees, minors, and temporary and seasonal workers as those who should count towards the threshold, to the extent they are employees at any time during the six months the ETS is in effect. In addition, an employer who has less than 100 employees as of November 5, 2021, but exceeds that number at any time during the 6-months thereafter, becomes responsible for compliance with the ETS requirements for the remainder of the six-month period.

Special guidance for staffing and construction companies is included in OSHA’s FAQ.

The ETS also specifically excludes from coverage any workplace already covered under President Biden’s Executive Order mandating vaccinations for Federal Contractor and Subcontractors or the OSHA ETS previously issued in June 2021 relating specifically to healthcare workers.

In answering a question posed by many, OSHA relays its confidence in employers with 100 or more employees to bear the administrative burden of implementing the standard’s requirements in a prompt fashion, but was less confident with respect to smaller employers. OSHA does intend, however, to assess application of the mandate to smaller employers and is seeking comment to help the agency make that determination.

III. If You’re Covered, What is Required?
For covered employers, the ETS establishes various vaccination, vaccination verification, face covering, testing, paid leave and recordkeeping requirements, summarized below:

Mandatory Vaccination Policy: the crux of the ETS is to require employers to develop, implement and enforce a written, mandatory vaccination policy. In an effort to stem the threatened exodus by many unvaccinated employees from private workforces, the ETS makes clear that an employer may choose to implement a company-wide mandatory vaccination policy as soon as practicable (with language addressing legally-recognized exemptions for medical and religious reasons) or implement a policy that allows employees to choose between full vaccination or weekly testing combined with face coverings, as defined in the ETS, in indoor workspaces. OSHA also explicitly permits employers to develop and implement partial mandatory vaccination policies – in other words, policies that include mandatory vaccination requirements for only a portion of their workforce, while treating vaccination as optional for others. It also specifically notes that the ETS requirements do not apply to employees who do not interact with and are not exposed to others in the course of performing their job duties, including employees who work from home, who work exclusively outdoors, and who do not report to a workplace where other people (co-workers or customers) are present.

Vaccination Defined:   OSHA’s definition of vaccination is consistent with that used by the CDC. OSHA requires “full” vaccination, which includes not only the full dose of an FDA or World Health Organization approved/authorized vaccination and compliance with the minimum recommended interval between doses, but also the two-week period following a person’s last primary dose. There are no exemptions in the ETS to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. The ETS treats those previously infected with COVID as unvaccinated for purposes of compliance.

Proof of Vaccination: with respect to the requisite proof of vaccination status required by the ETS, OSHA indicates that the following, among others, may be acceptable forms of proof: a record of immunization from a healthcare provider or pharmacy; a copy of a person’s signed COVID-19 vaccination card; medical records documenting or confirming vaccination; or public health or state immunization information system records/copies. For employees who are unable, for whatever reason, to produce acceptable proof, employers are permitted to require a written signed and dated statement by the employee, to include: attestation of the employee’s vaccination status (full or partial), their loss of and/or inability to produce proof of vaccination; and the language “I declare (or certify, verify, or state” that this statement about my vaccination stats is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”  The statement should also include information from the employee regarding the name and type of vaccine they received, the date(s) they received their dose(s), where they received them and the name of the entity or healthcare provider administering the dose(s).

Paid time off: Consistent with OSHA’s June 2021 healthcare ETS, employees are entitled to receive up to four hours of paid time off to receive each does of the vaccination (including time spent traveling, but only if the vaccination is received during normal work hours) at their regular rate of pay, as well as “reasonable time and paid sick leave” to recover from the side effects of each does of the vaccine. Recognizing the potential for abuse, OSHA specifically permits employers to cap the amount of paid time off they must provide to employees recovering from the side effects of vaccination, indicating that a two-day cap, per dose, would be considered reasonable. As expected, the ETS also allows employers to require employees to use accrued sick time or general PTO time when recovering from vaccination side effects. Travel costs associated with vaccinations (e.g., mileage reimbursement) are not required to be paid to employees under the ETS.
Neither OSHA nor the Department of Labor more broadly has provided any indication that federal funding or tax credits are contemplated for employers providing paid time off to employees under the ETS.

Testing: “Who will bear the cost of testing?” has been a question and significant concern for employers waiting for the ETS. While OSHA has traditionally placed the burden of workplace health and safety (financial and otherwise) primarily on employers, the ETS does not require employers to pay for an employee’s choice to be tested weekly in lieu of receiving the COVID-19 vaccination and, instead, places the burden of cost on unvaccinated employees. Employers are cautioned, however, under the ETS to remain mindful of other federal, state, and local laws and collective bargaining agreements that may state or require otherwise, including O.R.C. 4113.21 and the Americans with Disabilities Act (regarding employer obligations to pay for medical examinations) and minimum wage and compensable time issues under the federal Fair Labor Standards Act.

The ETS also addresses potential fraud in a second way, with respect to the testing results required to be submitted by unvaccinated employees. OSHA included the requirement for some type of independent confirmation of the test result given the “many social and financial pressures for test-takers to misrepresent their results,” by requiring unvaccinated employees to undergo tests that are: 1) cleared, approved, or authorized (emergency or otherwise), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Again, antibody tests do not need these requirements, although tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer will meet this definition.

The availability and timing of weekly testing of unvaccinated workers has also caused concern for many employers already stretched thin by a tight labor market.

Recordkeeping:  The ETS requires that employers maintain a roster of employee vaccination status. Because vaccination records and test results are considered “medical records,” this information must be maintained as confidential under OSHA’s existing regulations. While OSHA’s existing regulations require employers to maintain and preserve medical records of employees for the duration of employment, plus 30 years after separation, the ETS makes clear that these records and the roster must only be maintained and preserved while the ETS remains in effect.

In addition, the ETS requires that if an employee requests to examine or copy their individual COVID-19 vaccination and test results, or the number of full vaccinated employees at a workplace compared to the total number of employees at that workplace, employers must make that information available to the employee within one business day of the request being made. Employers may also be required to produce this information, as well as a copy of their mandatory vaccination policy and their roster of vaccination status to OSHA within 4 hours of OSHA’s request.

IV. When does the ETS Take Effect and For How Long?
Although the ETS becomes effective immediately, employers have two compliance dates to aim for:

1. December 5, 2021 for compliance with a written mandatory vaccination policy, determination of employee vaccination status, recordkeeping and all other ETS requirements except for unvaccinated testing; and
2. January 5, 2022 for compliance with the testing requirements for those not fully vaccinated (including those who have not yet received the requisite number of doses for a primary vaccination series and passed the two-week period following).

Because of the different timing for the three main vaccinations available in the United States, employers are cautioned to keep these dates in mind for purposes of completing the requisite vaccination series by that time.

OSHA anticipates that the ETS will be in effect for six months, or until May 5, 2022, but promises to  continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve.

V. In What Other Ways Will the ETS Affect The Workplace?
Significantly, the ETS does not eliminate an employer’s duty to bargain with a representative union over wages, hours, terms and conditions of employment. However, particular provisions of collective bargaining agreements may impact the type of bargaining an employer must engage in with a representative union, whether that be decision or effects bargaining. For example, certain contract language may allow for an employer implement the ETS immediately (and potentially without union involvement), while still bargaining with a representative union regarding the impact of the ETS on employees. Topics such as, who will cover the costs of testing for unvaccinated employees, whether testing will be available, disciplinary measures for not timely reporting tests, and the accommodation process are all likely topics over which bargained will have to take place. Regardless of the type of bargaining, employers should proceed with caution in attempting to unilaterally implement any provision of the ETS.

Employers should also be proactive in ensuring they meet the individual requirements of the ETS rather than relying on good faith efforts, as the ETS conceivably allows for OSHA to cite employers for general compliance and recordkeeping requirements in the absence of employee infections or fatalities. OSHA’s enforcement efforts, including the focus and resources the agency intends to dedicate to this COVID-related ETS as opposed to its National and Regional Emphasis programs, remains to be seen.

VI. Legal Challenges Expected
Despite the myriad of information OSHA has provided, significant questions regarding the ETS remain. Questions regarding enforcement mechanisms, potential penalties, as well as questions regarding the ETS’ express language pre-empting state and local law remain unanswered.

More than 20 states have promised to challenge the most recent ETS in court, President Biden’s Executive Order relating to federal contractors has also been challenged, and no one can predict the outcome of these lawsuits, including how rulings from federal Courts on these two mandates could be inconsistent. For now, employers should prepare to comply with the ETS as best as possible, while also keeping a close eye on OSHA’s guidance – as the situation is likely to change and evolve in the coming weeks.

If you have questions regarding the ETS, including what immediate steps employers should take to meet compliance deadlines, please contact Frantz Ward attorney Jon Scandling.