04 Nov ETS from OSHA on Vaccination and Testing Released

UPDATE 11/5: OSHA has issued an extensive FAQ (https://www.osha.gov/coronavirus/ets2/faqs) to help employers navigate the newly published ETS. Employers are expected to comply with most provisions regarding the vaccination and testing of employees by December 5th.

ETS for COVID-19 Vaccination and Testing Released

Over the last several weeks, employers have been waiting for the official ETS to be released to provide clarity on the timeline for implementation, associated fines for non-compliance, as well as documentation and reporting requirements.

Today, November 4, 2021, OSHA (Occupational Safety and Health Administration) announced a federal emergency temporary standard (ETS) to address the health and safety risks associated with COVID-19 in the workplace. Currently, the document is unpublished and is offered for public review. The ETS is scheduled to be published on November 5, 2021.

With the official release of the unpublished ETS, requirements are now made clear. We would expect additional guidance and FAQs to be released in the coming days to provide crucial insight for employers navigating the new requirements.

Who does the ETS impact?

• Private employers with 100 or more employees
  • This is a company-wide employee count and not a per location count. 

Timeline for employers to comply with the ETS

• Most provisions will require compliance by December 5, 2021
• Testing requirements must be met by January 4, 2021
• State plans will have 30 days to adopt the federal ETS or implement their own standard. Those states are:
  • Alaska | Arizona | California | Hawaii | Indiana | Iowa | Kentucky | Maryland | Michigan | Minnesota | New Mexico | Nevada | North Carolina | Oregon | Puerto Rico | South Carolina | Tennessee | Utah | Vermont | Virginia | Washington | Wyoming

What are the ETS Requirements?

• Develop, implement and enforce a mandatory COVID-19 vaccination policy; OR
• Develop, implement and enforce a policy allowing employees to choose to either
  • get a vaccination or
  • wear a face-covering in the workplace and have weekly COVID-19 testing done. 

Employer Responsibility Under the ETS

• Determine the vaccination status of each employee
• Obtain acceptable proof of vaccination
  • The record of immunization from a health care provider or pharmacy
  • A copy of the 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
  • A copy of any other official documentation that contains the type of vaccine administered, date administered and name of the health care professional or clinic
  • Retain a roster of each employee’s vaccination status. These documents are considered to be employee medical records and must be maintained in accordance with 29 CFR 1910.1020. These records are not subject to regular retention requirements but must be retained while the ETS is in effect.
• Any employee not able to provide one of the acceptable forms of proof of vaccination must be treated as not fully vaccinated for the purpose of the ETS. In instances where the employee is unable to produce acceptable proof of vaccination, per above a signed and dated statement by the employee, subject to criminal penalties for knowingly providing false information, including:
  • Attesting to their vaccination status (full or partial vaccination)
  • Attesting that they have lost or are otherwise unable to produce proof required by the ETS
• The employer must report to OSHA:
  • Each work-related COVID-19 fatality within 8 hours of employer learning of the fatality
  • Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.

ETS Weekly Testing Requirements

A COVID-19 test means a test for SARS-CoV-2 that is:

• cleared, approved or authorized by the FDA
• administered in accordance with authorized instructions
• not self administer and self-read unless observed by the employer or an authorized telehealth proctor.

Testing Timeline and Who Must Test

• An employee who reports at least once every 7 days to a workplace where others are present
  • Must be tested once every 7 days
  • Must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided test results
• Employees who do not report during a period of 7 or more days to a workplace where other individuals are present
  • Must be tested within seven days prior to returning to the workplace
  • Must provide documentation of that test result to the employer upon return to the workplace 
• Employers are not required to cover the cost of the testing*
  • *Note: Employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. 

Who is Exempt from the ETS?

• Employees who do not work with others present
• Employees working from home
• Employees who work exclusively outdoors
• Employees covered under the Safer Federal Workforce Task Force
• Employees under the Health Care ETS
• Employers with fewer than 100 employees
• Public employers in states without state plans
• Employees holding a sincerely held religious belief must be allowed reasonable accommodation under the Equal Employment Opportunity Commission’s guidelines (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeco-laws). 
• Employees for whom a vaccine is medically contraindicated
• Employees for whom medical necessity requires a delay in vaccination

What Paid Leave Provisions are in the ETS?

• Employers are required to provide reasonable time for each employee to obtain each of their primary vaccination series and allow up to four hours of paid time at the employee’s regular rate of pay for this purpose
• Reasonable time and paid sick leave are required for recovery from side effects of the vaccination
• Employees must provide immediate notice of a positive COVID-19 test/diagnosis and must meet criteria before being allowed to return to work
  • No weekly testing will be required for 90 days following the date of their positive COVID-19 test or diagnosis
  • The employer must maintain a record of each test result provided by each employee
  • The employer must keep the employee removed from the workplace until the employee:
    • receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
    • meets the return to work criteria in CDC’s “Isolation Guidance”; or
    • receives a recommendation to return to work from licensed healthcare provider
    • The ETS does not require employers to provide paid time off to any employee for removal from the workplace due to a positive COVID-19 test or diagnosis

What Other Clarifications are in the ETS?

• Prior COVID-19 Infection:
  • OSHA determined workers who have been previously infected with COVID-19 still face grave danger from workplace exposure and without additional supporting scientific evidence of immunity will still be required to comply with the standards set forth. 
• The basis for OSHA’s ‘grave danger’ finding is that employees can be exposed to the virus in almost any work setting; that exposure can lead to infection and that infection can cause death or serious impairment of health, particularly in the unvaccinated.
• Although this ETS does not impose a strict vaccination mandate, OSHA has determined that, to adequately address the grave danger that COVID-19 poses to unvaccinated workers, a more proactive approach is necessary than simply requiring employers to make vaccination available to employees.
• Although the ETS does not require all covered employers to implement a mandatory vaccination policy, OSHA expects that employers that choose that compliance option will enjoy advantages that employers that opt-out of the vaccination mandate option will not.
• Under the ETS, fully vaccinated means a person’s status 2 weeks after completing primary vaccination or the second dose of a two-dose series with a COVID-19 vaccine
• Clarification on what employers are impacted by the ETS were provided by OSHA through a series of examples:
  • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
  • 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 would be within the scope of this ETS because it has more than 100 employees.
  • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
  • If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
  • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
  • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
  • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
  • If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
  • If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
  • If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
  • Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.