COVID-19 Vaccination and Testing Emergency Temporary Standard

Happy Friday.

Yesterday, the Occupational Safety & Health Administration (“OSHA”) issued a new Emergency Temporary Standard (“ETS”). Businesses are required to comply with the ETS within 30 days, but have 60 days from today’s date to implement testing of unvaccinated employees. For many businesses, this means some work (and some tough decisions) over the next few weeks.

These FAQs represent our current understanding of the ETS, based on information presently available as related to questions we have fielded since yesterday’s announcement. See also:

  • this link to the Federal Register for the complete text of the COVID-19 Vaccination and Testing: Emergency Temporary Standard;
  • this link to OSHA’s ETS FAQs; and
  • this link to OSHA’s ETS webinar.

Additional information will soon be available. In the meantime, please contact us at 414-446-8800 or should you have any questions.

The ETS applies to businesses with more than 100 employees. How is that number calculated?

The ETS states: “In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.” Notably:

  • OSHA does not distinguish between part-time and full-time employees. However, independent contractors do not count in the calculation.

OSHA Example: If an employer has 75 part-time employees and 25 full-time employees, the employer is subject to the ETS because it has 100 employees.

  • OSHA does not distinguish between remote and onsite workers.

OSHA Example: 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 is still subject to the ETS because it has more than 100 employees.

OSHA Example: If an employer has 102 employees and only 3 ever report to an office location, the employer is still subject to the ETS because it has more than 100 employees.

  • OSHA does not distinguish between work sites.

OSHA Example: If an employer has 150 employees, 100 of whom perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces) such that they rarely or never report to the main office, the employer is still subject to the ETS.

  • OSHA does not consider whether employees are already vaccinated.

OSHA Example: If an employer has 200 employees, all of whom are vaccinated, the employer is still subject to the ETS.

As to enforcement under the ETS, is there any distinction between types of employees?

The ETS requirements do not apply to employees “(i) who do not report to a workplace where other individuals such as coworkers or customers are present; (ii) while working from home; or (iii) who work exclusively outdoors.” In other words, while these employees count toward the 100-employee threshold, the particular ETS requirements may not apply to them.

What is the employer penalty for violating the ETS?

OSHA Penalties are up to $13,653 per violation and up to $136,532 per willful or repeated violation.

So what does the ETS require of employers and employees?

Employees must be fully vaccinated by January 4, 2022 (60 days from the date of the order). “Fully vaccinated” refers to a person’s status two weeks after receiving the full complement of their chosen COVID-19 vaccine (two doses for Moderna and Pfizer, and one dose of J&J). Notably, the definition does not include booster shots.

Partially and unvaccinated employees must follow unvaccinated employee mask rules, effective December 5, 2021, until meeting the fully vaccinated standard. Employees who are not vaccinated (or only partially vaccinated) as of January 4, 2022, must follow OSHA’s unvaccinated employee testing and mask requirements.

Testing Requirement: Employees who report to the workplace on a weekly basis must be tested once every seven days (i.e., weekly). Employees who report to the workplace only occasionally (e.g., once per month) must be tested within seven days of reporting to the office. Employers may require more frequent testing.

Employers may also require that employees pay for testing, and the time away from work associated with COVID testing need not be paid by the employer (note that the FLSA and related state statutes still may come into play).

Employers must retain the records of each employee’s test results for the duration of the ETS.

Mask Requirement: Unvaccinated employees must begin wearing masks indoors no later than December 5, 2021. Exceptions to the mask requirement are limited (e.g., “when alone in a room with floor to ceiling walls and a closed door”). Employers need not cover the cost of this.

Do the vaccination and testing requirements apply to all employees?

No. Those who qualify for a medical or religious exemption need not be vaccinated, but still must comply with the ETS testing and mask requirements. The ETS also includes exceptions for employees who work from home 100% of the time, do not report to the workplace when other individuals are present, or work exclusively outdoors.

Must employers provide paid time off for vaccination and/or recovery from vaccine side effects?

Yes, employers must provide “reasonable time, including up to four hours of paid time” for each primary vaccine dose, and may not require employees to use existing paid time benefits for this purpose. This provision does not take effect until December 5, 2021.

Employers must also provide “reasonable time and paid sick leave to recover from side effects” (up to two days) following each primary vaccine dose. There is no requirement that employers provide additional paid time off for this purpose, and they may require employees to use existing paid leave.

What COVID-19 tests are permissible for employee use?

The ETS specifies three requirements for acceptable COVID-19 tests. It must be “a test for SARS-CoV-2 that is (i) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (ii) administered in accordance with the authorized instructions; and (iii) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”

What other employer responsibilities are there?

Employers subject to ETS must:

  • institute a vaccination policy that meets OSHA’s standards. OSHA has created two different templates – available here;
  • determine the vaccination status of all employees by requiring proof of vaccination and maintain an up-to-date roster of employee vaccination status;
  • require employees to notify the employer of any positive COVID-19 test or diagnosis;
  • report to OSHA any work-related deaths (within eight hours) or in-patient hospitalizations (within 24 hours) due to COVID-19; and
  • provide the CDC document Key Things to Know About COVID-19 Vaccines to all employees.

This list is not exhaustive. Please contact us at 414-446-8800 or with respect to your responsibilities or any other related questions.

The above FAQs are reflective of questions received and information available at this time. We will update them as we receive further guidance and relative to new developments.