What does the OSHA ETS mean for your business?
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring all private employers with 100 or more employees to implement either requirement that employees be vaccinated against Covid-19 or be subject to weekly testing and wear of a face covering.
The ETS does not cover employers already subject to other federal vaccine mandates such as Federal Contractors/Subcontractors and Health Care employers subject to the previously released Health Care ETS.
Special Update as of 11/10/21:
- On November 6, 2021, the Fifth Circuit Court of Appeals issued a nationwide stay on the OSHA ETS that suspends the ETS in its entirety pending judicial review. The court instructed the government to respond to a request for permanent injunction no later than 5:00pm on November 8, and the states challenging the order were instructed to respond to the government’s response no later than 5:00pm on November 9. As both deadlines are passed and the court has expedited the review process, a final ruling on the permanent injunction is expected very soon.
- If a permanent injunction is not imposed, then the ETS will go back into effect and it is unlikely that OSHA will make accommodations to its already established deadlines. Employers should therefore make preparations now, including determination of the course of action they will take regarding vaccination mandates versus testing.
- If a permanent injunction is ordered, the injunction may still be overturned by the Supreme Court. Again, OSHA is unlikely to alter the deadlines for compliance already established by the ETS. While the stay and any future injunction are in place, there is no requirement to comply with the ETS. However, if those restrictions are removed, employers should be prepared to take immediate action to comply with requirements by December 5, 2021 and January 6, 2022.
Employee Count
The 100-employee count includes all full time and part time employees at all company locations in the United States, but the count does not include independent contractors that may work at the employer’s location(s). Remote workers and those who work exclusively outdoors are also included in the total count even though they may be exempted from vaccination or testing requirements. Staffing agency employees are included in the agency’s employee count, not the hosting company’s employee count.
Timeline and Important Dates
Although the ETS became effective immediately upon publication in the Federal Register on November 5, 2021, enforcement of the rule does not begin until December 5, 2021. At that time, OSHA will enforce all aspects of the ETS except the requirement for vaccination or testing, which will not be enforced until January 4, 2022.
Written Policy Requirement
Employers are required to establish, implement, and enforce written policies and procedures that ensure compliance with the ETS. The policy must employ either a vaccine mandate or a testing approach with a vaccination opt out. Under a mandatory vaccination program, employees are entitled to a reasonable accommodation, absent undue hardship to the business, under the Americans with Disabilities Act (ADA) or the Title VII of the Civil Rights Act for sincerely held religious belief or practice. Accommodations apply to both vaccination and face coverings.
Requirement to Inform Employees
Employers are required to provide all employees with a copy of “Key Thing to Know About COVID-19,” which can be obtained from the CDC’s website. Employees should also be informed that the employer is prohibited from discharging or discriminating against any employee for reporting workplace injury or illness or from filing a complaint with OSHA. The ETS also requires employers to inform employees that knowingly supplying false statements or documentation can result in criminal penalties.
Vaccination Status
In accordance with the ETS, covered employers are required to collect proof of employee vaccination. A record must be kept of each employee’s proof of vaccination along with a roster of each employee’s vaccination status. Upon request and by the end of the next business day, employers must allow an employee to examine and copy the employee’s vaccine documentation. Both the proof of vaccination and status roster are considered medical records and should be treated and protected in the same manner as other employee medical information.
Testing Requirements and Face Coverings
Employers that adopt a testing approach with a vaccine opt out are required to test unvaccinated employees at least weekly. Under most circumstances, the employer is not required to pay for testing and may require the employee to pay instead.
Employers are required to retain record of each test. Upon request and by the end of the next business day, employers must allow an employee to examine and copy the employee’s record of test results. All testing records are considered medical records that must be maintained in accordance with the same protections as other employee medical records.
Unvaccinated employees are also required to wear a face covering at all times while indoors, except when alone in a room with floor to ceiling walls and a closed door, while eating or drinking, or for identification purposes.
Paid Time Off Requirements
The ETS creates a requirement for covered employers to provide employees with reasonable time, including up to four hours of paid time, to receive each primary vaccination dose. Additionally, the ETS requires reasonable time and paid sick leave for employees to recover from side effects after vaccination. Employers may require employees to use earned sick time or PTO for recovery after vaccination but cannot require the employee to go into a negative balance if the employee does not have sufficient paid time off available.
Remote Employees
The ETS does not apply to remote employees that never work in an office or meet with coworkers or customers. Employees that work remotely but not sometimes work in the office, meet with coworkers, or meet with customers are also required to provide proof of vaccination or be subject to testing whenever they are scheduled to be in the office. For example, an employee that works from home four days per week but works in the office once per week is required to show a negative test weekly. A remote employee that only comes to the office or meets with coworkers once per month would only need to be tested once, seven days prior to entering the office or meeting with coworkers. All remote employees are still included in the total employee count.
Conflict with State Restrictions
Texas, Florida, and a number of other states have taken action to prohibit or diminish the ability of private and government employers to impose vaccine mandates on their workforces. The Texas Executive Order issued by Governor Abbott does not prohibit vaccine mandates. Rather, it expands the reasons for exemption. It appears possible for a business in Texas to comply with both Governor Abbott’s EO and OSHA’s ETS through a mandatory testing policy with a vaccine opt out.
Until OSHA’s enforcement begins on December 5, 2021, employers in states with restrictions on vaccine mandates should seek to comply with their state laws. However, OSHA’s ETS supersedes state laws which contradict it. Therefore, once OSHA enforcement begins, employers in states like Texas should seek to comply with the ETS.
Next Steps
If your business does not currently meet the 100-employee threshold, then there is not additional action to take at this time. Any state law or executive order restricting vaccine mandates will still apply to your business. However, if you believe your employee count may reach 100 or more in the next 6 months, please contact Achilles Group to discuss how you should prepare for compliance with the ETS.
This ETS faces numerous legal challenges, so staying flexible is just as important as staying informed. Achilles Group will endeavor to keep you up to date on the latest developments as well as provide additional guidance as needed. To learn more about ongoing HR guidance for your Houston-based business, please contact Achilles Group.
