On Friday, Nov. 5, 2021, Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard was issued, with most requirements set to go into effect on Dec. 5. The ETS applies to employers with a total of 100 or more employees company-wide. Employers covered by the ETS would be required to develop, implement and enforce a mandatory vaccination policy, subject to limited exemptions, or allow unvaccinated employees to test regularly and be subject to a mask policy, among other associated recordkeeping, reporting and training requirements.

Almost immediately, the ETS was hit with a number of legal challenges in various courts across the country. On November 6, just a day after the ETS was issued, the U.S. Circuit Court of Appeals for the Fifth Circuit issued an order staying the implementation of the ETS until further notice. The Court’s order was not a final ruling on the validity of the ETS but has halted implementation of the ETS, at least for the time being. Other legal challenges are already in process, further complicating the issue of if and when the ETS will become effective.

As of November 2021, the ETS is on hold, at least temporarily. That could change any day and the ETS could be back in effect, in whole or in part, or permanently halted. The legal challenges to the ETS are unlikely to end, or diminish, until the Supreme Court has weighed in, making for a few uncertain months ahead. 

Employers across the country are handling this uncertainty in different ways. Some employers that may have been waiting for a federal vaccine mandate have already begun undertaking efforts to comply with the ETS. Other employers that may be concerned with the resources and efforts necessary to comply with the ETS, and who are already struggling with worker shortages and employees stretched thin with ever increasing responsibilities, are waiting to see how the legal challenges will shake out.

Regardless of the approach a company may take in the face of the legal uncertainty surrounding the ETS, employers should understand whether the ETS applies to them and, if so, how. The remainder of this article provides a brief summary of the main aspects of the ETS. 

Applicability

Generally, the ETS applies to all private employers with a total of 100 or more employees at any time the ETS is in effect. There are several exemptions and many nuances to this applicability. For starters, any employer already subject to one of the following requirements, is not covered by the ETS:

• COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
• OSHA Emergency Temporary Standard for healthcare employers; or 
• Centers for Medicare & Medicaid Services (CMS) Health Care Staff Vaccination rule. 

In determining whether an employer has more than 100 employees, it is important to note that all employees are counted across all of the company’s locations in the United States. This includes part-time, seasonal and work from home employees, those that do not report to a workplace, and those that work exclusively outdoors. While other aspects of the ETS may not apply to some of these employees, for purposes of counting to 100 employees, they are all counted.

For most companies, this determination will be fairly straightforward. However, some companies may need to take into consideration how to count independent contractors or employees from a staffing agency or of a franchisee. If a company is unsure how to count certain employees or finds itself close to the 100 employee threshold, it may be worth consulting with legal counsel for assistance in determining the company’s exact employee count under the ETS.

Mandatory Vaccination Policy

The ETS requires a covered employer to establish, implement and enforce either a written mandatory vaccination policy or a written policy allowing employees not subject to a mandatory vaccination policy to choose either to be vaccinated or provide proof of regular testing and wear a face covering most of the time they are in the workplace. Implementing a mandatory vaccination policy will include evaluating and documenting exemptions for a disability, sincerely held religious beliefs, practices or observances conflicting with vaccination, or medical necessity. Implementing a vaccination policy that allows employees to choose testing and face coverings in place of being vaccinated will include continuous tracking of the status of unvaccinated employees and their testing results and monitoring face covering compliance. While the ETS does not require employers to pay for employee testing, employers will need to determine if they are required to do so under other laws, regulations or collective bargaining agreements.

OSHA’s COVID-19 Vaccination and Testing ETS website has sample templates for both a mandatory vaccination policy and a vaccination or testing and face covering policy. 

Other Employer Requirements

Regardless of the type of policy put in place, covered employers will also be required to determine the vaccination status of each covered employee. For this vaccination determination requirement, covered employees do not include those that work from home, remotely or exclusively outdoors. Covered employers must maintain vaccination records and be able to produce them in response to an OSHA inspection or request.

Unvaccinated employees must be provided with up to four hours paid time, including travel time, at the employee’s regular rate of pay so they can get vaccinated; as well as reasonable time and paid sick leave for them to recover from any side effects associated with the vaccinations. Covered employers will also need to provide each covered employee with information, in a language and at a literacy level the employee understands, regarding:

• the requirements of the ETS; 
• workplace policies and procedures established to implement the ETS;
• vaccine efficacy, safety and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”);
• OSHA’s protections against retaliation and discrimination; and 
• laws that provide for criminal penalties for knowingly supplying false statements or documentation.

The ETS will also impose specific reporting obligations for COVID-19 fatalities and hospitalizations upon covered employers. These reporting obligations largely track employers’ existing reporting obligations found in 29 C.F.R. § 1904.39, except that, with regard to COVID-19 fatalities and hospitalizations, OSHA has eliminated the requirement that, to be reportable, the fatality must have occurred within 30 days and the hospitalization must have occurred within 24 hours of the work-related incident. Because symptoms can be delayed, OSHA did not feel a temporal reporting restriction was appropriate. 

State Plan States

States with OSHA-approved State Plans, such as California, Virginia, Michigan, North Carolina, Arizona and Oregon, have 30 days from the ETS becoming effective to either amend their standards to be identical or at least as effective as the ETS or show that an existing State Plan standard covering this area is already as effective. This means that private employers in State Plan states may have some more time to comply with the ETS once in effect. Currently, several State Plan states have failed to implement OSHA’s Healthcare ETS within this timeframe and OSHA has threatened to revoke these states’ approvals under OSHA.

While the timeline to comply with the ETS is in flux, it is important to stay on top of developments to ensure that a company has sufficient time to react and comply if/when the ETS takes effect.