On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued a new COVID-19 emergency temporary standard (ETS) covering private sector employers with 100+ employees that requires such employers to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing. The ETS’s effective date is November 5, 2021. The ETS is already subject to extensive litigation. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a temporary stay of the ETS. While the future of the ETS remains uncertain due to pending legal challenges, it may take weeks of planning for employers to comply with the ETS’s deadlines, so prudent employers should continue preparing for the ETS as if it is going to take effect while litigation continues.

Which Employers Are Covered?

Generally, the ETS covers employers with 100 or more total employees company-wide.

Persons that count towards the 100-employee total include all persons directly employed by the company, including part-time employees, minors, and workers in foreign countries.

Persons that do not count towards the 100-employee total include independent contractors and workers directly employed by a third-party staffing agency

For employers with fluctating numbers of employees, the rules are as follows:

• If the employer has 100 or more employees on November 5, 2021, the ETS applies to the employer for the entire duration of the ETS, even if the number of employees drops below 100.
• If the employer has fewer than 100 employees on November 5, 2021, the ETS would not apply. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the ETS.

The ETS does not cover employers who are:

• federal contractors or subcontractors subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
• healthcare employers that participate in Medicare and Medicaid programs.

Which Employees Are Covered?

The ETS requirements apply to all employees except employees (i) who do not report to a workplace where other individuals are present, (ii) while working solely from home, or (iii) who work exclusively outdoors.

What Must Covered Employers Do?

 Require employees to be vaccinated or undergo weekly testing

The ETS requires all covered employees to either choose a mandatory vaccination policy subject to the exemptions of disability or strongly held religious belief; or choose a policy whereby the employee is vaccinated or is subject to weekly testing by January 4, 2022. The policy must also include a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions. The policy must state that employees are subject to mandatory vaccinations or weekly testing or equivalent safeguarding such as 100% remote work.

 Require unvaccinated employees to wear masks

Employers must ensure all unvaccinated employees wear a face covering while indoors or when occupying a vehicle with another person for work purposes, with limited exceptions. If an employee cannot wear a face covering because of a disability or a sincerely held religious belief, the employee may be entitled to a reasonable accommodation.  Masks must be worn by December 5, 2021 (however, some local and state rules already require mask-wearing in certain situations regardless of vaccination status).

Provide paid time off

All employers (whichever policy they choose) must pay employees who get vaccinated during work hours up to four hours of paid time to receive each primary vaccine dose (excluding any booster doses). If the employee needs more than four hours of time off from work for a vaccine dose, the additional time may be unpaid, but counts as protected leave for which the employee cannot be disciplined or fired.

All employers must also provide employees suffering side effects from vaccination with “reasonable” paid time off.

 Comply with recordkeeping requirements.

1.    Maintain records of vaccination status.

The ETS requires that employers determine and maintain records of each employee’s vaccination status. This information is considered employee medical records and must be treated as such, including being kept confidential and separate from personnel files. This information must be maintained and preserved while the ETS is in effect. In determining vaccination status, employers must require each employee to provide “acceptable proof” of vaccination status, as set forth in the ETS. Acceptable proof includes but is not limited to:

• An immunization record from a health care provider or pharmacy;
• A copy of a COVID-19 Vaccination Record Card;
• a copy of medical records documenting the vaccination;
• a copy of immunization records from a public health, state, or tribal immunization information system; or
• an attestation from the employee that states, among other matters, that they have lost or are otherwise unable to produce proof of vaccination

Employers that have previously collected attestations prior to the effective date do not need to re-verify or collect these attestations.

2.    Provide information to Employees

Employers must inform each employee about the requirements of the ETS, relevant employer policies and procedures, and the benefits of being vaccinated against COVID-19.

3.    Report certain COVID-19 cases

Employers must report COVID-19 work-related fatalities within eight hours of learning of the death, or within 24 hours of learning of an employee’s in-patient hospitalization.

Deadlines

The deadline for employees to be fully vaccinated or start weekly testing is January 4, 2022.

The deadline to comply with all other provisions under the ETS is 30 days after its anticipated November 5, 2021, publication in the Federal Register (i.e., on or about December 5).

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