The U.S. Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that their employees are either fully vaccinated against COVID-19 or are tested on a weekly basis. This ETS compliments previous efforts by the federal government to address the COVID-19 pandemic, including Executive Orders requiring federal contractors and federal employees to be vaccinated, and regulations issued by the Centers for Medicare and Medicaid Services (CMS) requiring vaccination for employees of health care facilities.
Legal Challenges
Legal challenges opposing the ETS have already been filed in various U.S. Courts of Appeals, including the Sixth Circuit, with jurisdiction over Ohio. As of November 5, 2021, the Fifth Circuit Court of Appeals has issued a temporary stay of the new OSHA standard citing potential “grave statutory and constitutional issues with the Mandate.” OSHA is required to respond to a request for a permanent injunction by November 8, 2021. The brief order staying the ETS is here:
https://www.ca5.uscourts.gov/opinions/unpub/21/21-60845.0.pdf
The enforceability of OSHA’s vaccine mandate is likely to be taken up by the U.S. Supreme Court in the coming days. Below are the ETS deadline and requirements in the event the stay is lifted. Coolidge Wall will continue to update its website as new information becomes available.
ETS Deadlines
The ETS itself takes up 154 pages of the federal register. OSHA has also published a series of official Frequently Asked Questions (FAQs) which address some common concerns for employers. The FAQs are located online here: https://www.osha.gov/coronavirus/ets/faqs
In states (including Ohio) where the federal government enforces the OSH Act, the ETS became effective immediately on November 5, 2021. Employers in these states have 30 days to comply with most of the requirements in the ETS.
Accordingly, by December 5, 2021, employers must establish a vaccination policy. This policy must require: employees to report positive COVID-19 tests; positive COVID-19 employees to be removed from the workplace; and unvaccinated employees to wear face coverings when indoors or when occupying a vehicle with another person. An employer’s policy must also provide employees with information about: the ETS; workplace policies and procedures; vaccination efficacy; safety and benefits; protections against retaliation; and laws providing for criminal penalties for supplying false documentation.
Also by December 5, 2021, employers are required to determine the vaccination status of each employee and require unvaccinated employees to wear face coverings. Importantly, employers must provide paid leave for employees to get vaccinated, and they must establish a reporting policy and recordkeeping policy for COVID-19 related records.
January 4, 2022 is the deadline for employers to require COVID-19 vaccines and/or weekly testing of employees.
Covered Employers
In general, all private employers with 100 or more employees must comply with the ETS. Significantly, federal contractors covered by the federal contractor mandate and healthcare employers covered by the CMS mandate are not covered by this ETS (although they face similar mandates from other executive branch directives).
OSHA is also considering what requirements it may issue in the future for employers with fewer than 100 employees. OSHA has indicated that such requirements may include a strict vaccination policy and elimination of the testing alternative.
An employer’s coverage is determined by counting all of its employees across all of its U.S. locations, regardless of an employee’s vaccination status or where they perform their work. For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS. Part-time employees count towards the total number of employees, although independent contractors do not count.
Coverage for Joint Employer and Related Entities
To determine coverage, employers must count all employees across all of their U.S. locations, regardless of each employee’s vaccination status or where they perform their work. Part-time employees count towards the total number of employees, but independent contractors do not.
Even for a single corporate entity with multiple locations, all employees at all locations are counted for purposes of meeting the 100-employee threshold for coverage.
The ETS states that “two or more related entities may be regarded as a single employer” if they “handle safety matters as one company,” in which case “the employees of all entities making up the integrated single employer must be counted.” The ETS does not give further guidance on what “safety matters” may be considered; nor does the ETS discuss whether OSHA intends to look at how an employer is treated under other federal employment laws when deciding if it is a single employer for purposes of the ETS.
However, employers should expect OSHA to decide coverage on a fact-specific basis. In assessing whether the ETS may apply to related entities, it makes sense to look to trends in other OSHA enforcement proceedings and other employment laws.
Specifically, employers should look at how interrelated their entities are in handling workplace safety issues. This includes whether they have integrated safety directors and human resources management, and whether they have responded to prior OSHA inspections as individual companies or through a parent or affiliated company in the past. Similarly, if a parent or affiliated company has taken responsibility for issuing COVID-19 policies for other related companies in the past, this may be a strong indicator that the companies “handle safety matters as one company” for purposes of the ETS.
Likewise, companies should probably consider whether they would be considered joint employers for purposes of other employment laws. While OSHA has not specifically indicated that it will look to other employment laws to determine ETS coverage, there are some typical factors considered by other government agencies in conducting employee headcounts. One such example is the Office of Federal Contract Compliance Programs (OFCCP), which uses a familiar “single entity test.” This test considers the following factors (more “yes” answers makes it more likely that both entities will be considered to be a single employer):
- The entities have common ownership;
- The entities have common directors and/or officers;
- One entity has de facto day-to-day control over the other through policies, management or supervision of the entity’s operations;
- The personnel policies of the entities emanate from a common or centralized source; and
- The operations of the entities are dependent on each other, e.g., services are provided principally for the benefit of one entity by another and/or both entities share management, offices or other services.
In the absence of additional guidance from OSHA, it is reasonable to expect OSHA to look to this list or something similar in determining whether related companies should be treated as a single entity for purposes of meeting the 100-employee threshold.
Staffing Agencies
The FAQs for the ETS state that “in scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.” This is true even where the staffing agency and host employer normally share responsibility for the workers under OSHA for reporting purposes.
Exempted Employees
Although all employees are counted for purposes of determining employer coverage, some employees are individually exempted from the vaccination and/or weekly testing mandate. The ETS requirements do not apply to employees who never work or meet with coworkers or customers, such as remote or work-from-home employees. Employees who only occasionally work with other employees or customers must obtain a negative COVID-19 test within seven days before such interactions.
Likewise, employees who work exclusively outdoors are exempted from the vaccine and weekly testing requirements. The ETS notes that employees who mainly work outdoors with some indoor work (such as construction workers who have a brief indoors meeting at the beginning of their shift each day) would not qualify for this exemption.
Proof of Vaccination
Employers must obtain and collect proof of each employee’s vaccination. This requirement can be met with:
- a 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; or
- a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
Employers may also accept a signed and dated attestation from an employee who has lost his or her documentary proof. The attestation must state the employee’s vaccination status, must include a statement that the vaccination document is lost or unavailable, and subject the employee to criminal penalties for lying.
Weekly Testing
Starting January 4, 2022, employees who are not fully vaccinated must be tested on a weekly basis for COVID-19 and must present evidence of a negative test to their employer.
The ETS requires that such testing be:
- cleared, approved, or authorized by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (antibody tests do not meet the ETS requirements);
- administered in accordance with the authorized instructions; and
- not be both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.
This includes laboratory tests, including home or on-site collected specimens, proctored over-the-counter tests, point-of-care tests, and tests collected or observed by the employer. Employees are not permitted to self-administer and self-read COVID-19 tests unless they are observed by the employer or an authorized telehealth provider.
The ETS does not require employers to pay for COVID-19 testing. Unless otherwise dictated by other laws, regulations, or a collective bargaining agreement (generally not applicable to most Ohio employers), employers may require that employees bear the expense of any weekly testing. (Note that some employees with disabilities may request that employers pay for testing under the Americans with Disabilities Act (ADA) as a reasonable accommodation. Likewise, some states, including Kentucky, generally require that employers bear the cost of any employee testing.)
Accommodations
The ETS specifically notes that employees with medical issues, disabilities, or sincerely held religious beliefs prohibiting vaccination may request accommodation. In each such instance, employers should engage in an interactive process with such employees to determine whether exempting them from the vaccine requirement is reasonable, and whether the accommodation would cause an undue hardship to the employer or a direct threat to other employees. These determinations should be made on a case-by-case basis; the best practice is to consult with legal counsel before granting or denying an accommodation request.
The Future of the ETS
Many employers consider the ETS to be an extreme example of government intrusion into the affairs of private industry. Likewise, several state governments, including Ohio, have joined in various litigation efforts to prevent the implementation of OSHA’s vaccine mandate. These legal challenges are still in their infancy. The Labor and Employment lawyers at Coolidge Wall will post additional analysis and information updates. Should you have specific questions, please contact us.
