November 11, 2021

This week, many employers are wrestling with the Occupational Safety and Health Administration’s (OSHA) new Emergency Temporary Standard (ETS) issued on November 4, 2021. The ETS has a phased 30/60-day implementation deadline, requiring private employers with 100 or more employees to enact a COVID-19 vaccination mandate or, at minimum, uphold a vaccination or weekly testing protocol for their employees. To help with any background, below, we have provided an Addendum – Overview of the ETS with a detailed summary and additional considerations.

News media has widely reported both OSHA’s new requirements (The Hill, WSJ) and the immediate legal challenge it faces, including a “stay” from a Federal Appeals Court (NYT, WSJ).

Why Your CEO May Care

So far, companies’ involvement in employees’ vaccination decisions have varied and been driven by company culture, workforce and business continuity concerns and other factors. Many companies have encouraged employees to get vaccinated and provided vaccine education, some have incentivized vaccination, and others have remained relatively neutral. For employers that have been monitoring employee vaccination status, we have also seen variation in the documentation requested from employees, with many employers trying to reduce the administrative burden and the amount of employee data collected for privacy reasons.

Now however, OSHA’s ETS requires one of two vaccination policies: a vaccine mandate or a “vaccine or test” requirement. Additionally, documentation and reporting/disclosure requirements in the ETS go above what many employers were anticipating, which increases the pressure associated with the ETS timeline. Employers are expected to meet some of the requirements by December 5, 2021 and the remainder by January 4, 2022. This is an extraordinarily fast and challenging compliance deadline. Of particular concern for the implementation timeline are COVID-19 testing requirements and testing documentation (summarized below) for employers that make the testing option available and who do not already have testing protocols in place.

The immediate legal challenges – and why employers should still pay attention to the ETS

Certain groups have broadly challenged the ETS on a number of legal fronts and a Federal Appellate Court has issued a stay, which effectively pauses the application of the ETS. However, it would be prudent for employers to take steps to prepare to implement the ETS’s requirements until the outcome of the legal cases are determined.

• Short deadlines may still apply. The cases will likely move quickly through the judicial system and there’s no guarantee that OSHA will push back the otherwise applicable compliance dates, even if the case resolution is close to the December and January deadlines.
• Severability. This means that the Federal Court(s) could decide that part(s) of the ETS should not apply, but that other parts will remain in effect and be required of employers. At this point, it is unclear which, if any, requirements would be most likely to be removed and what impact that may have on other parts of the ETS. But the prospect of severability and the uncertainty about which, if any, provisions may be invalidated means that employers should be prepared to comply with the full ETS by the existing deadlines.
• Complicated interactions with state/local requirements and collectively bargained agreements. Assuming at least some portion of the ETS survives the legal challenges, employers need time to work through the impact of state/local laws, including some that may try to impede a company from meeting ETS requirements. Additionally, the cost of testing (for employers that allow a testing alternative) and other factors may need to be addressed in collective bargaining agreements or, again, under state/local legal requirements.
• Engaging vendors or preparing internal resources to support documentation compliance. The documentation and disclosure requirements of the ETS may be difficult for some employers to implement with little lead time.

What Should Large Employers Be Doing?

Given the strong possibility of at least some ETS requirements being required by December 5, employers should:

• 1 | Decide which type of policy they will adopt and for which populations. Note, the employer can have different policies for different groups (on a nondiscriminatory basis).
• 2 | If an employer’s existing vaccination or testing policy is more stringent than the ETS’s requirements, determine if it will be continued or scaled back to align with the ETS.
• 3 | Prepare the written policy(ies).
• 4 | Review the administrative, recordkeeping, and reporting/disclosure requirements and identify the internal and/or external resources to meet them. This may include engaging existing or new vendors, reviewing existing tracking procedures (if applicable), and developing a scope of work and contracting terms that the employer can rely on for compliance.
• 5 | Identify any excepted employees and enact/confirm reliable workforce management practices to help ensure they would be considered excepted if audited by OSHA.
• 6 | Identify other medical or legal accommodations that may need to be addressed and coordinate the internal team(s) responsible for those determinations and develop guidance for consistent application.
• 7 | Review (and resolve, if possible) potential conflicts with state/local laws or collective bargaining agreements that may apply given the employer’s locations and workforce composition.
• 8 | For employers permitting a testing alternative, determine which tests to accept and how to address the witness/proctor requirements for self-administered testing. Estimate the volume required, assess type of test needed and calculate associated cost.
• 9 | Determine whether the cost of weekly testing will be paid by the employer or, as permitted, borne by the employee. • Review and address any undesired testing costs with the carrier/TPA – that could be submitted to and paid for by the company’s health plan.
• 10 | Discuss the implications of any potential changes to the ETS due to the Federal Court cases. Would the company still go forward to at least some extent (to the degree permitted under other applicable laws/requirements), or would the company halt any voluntary program it’s not otherwise undertaking today? Any vendor contracts may need to incorporate termination or other contingency clauses to reflect that possibility.

What's Next?

We will further discuss the ETS and any new developments on our next Regulatory & Compliance webinar on Monday, November 15, 2021 at 12:00 PM ET. Members can register here.

In the coming weeks, we expect additional OSHA guidance and potentially some changes arising from the legal challenges. The Business Group will continue to engage with the agencies and monitor developments to assist and inform our members. We welcome member input and questions – please contact Garrett Hohimer, Director, Policy & Advocacy for comments or assistance.

Addendum - Overview of the ETS

The basic requirements and timeline of the ETS for employers with 100 or more full- and part-time employees (combined across all worksites and including remote workers) are provided below. Note that there are exceptions from this ETS for federal contractors, certain public sector entities, and employers with health care settings that may be covered by other vaccine and safety requirements.

By December 5, 2021:

• Adopt, implement, and enforce a written mandatory policy that is either:
• a vaccination-only policy - requiring that all employees be fully vaccinated (with certain legal and medical exceptions); or
• a vaccine or testing policy - requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

Note, the ETS excepts certain employees entirely if they:

• do not report to a workplace where other individuals (coworkers or customers) are present;
• work from home (i.e., are remote-only employees); or
• work exclusively outdoors (other than de minimus time indoors at a workplace, e.g., to use the washroom briefly)
• Provide paid time off for vaccination and to recover from any side effects of the vaccine. Employers must provide up to 4 hours of paid time, including travel time, per primary vaccination dose for an employee to receive the COVID-19 vaccine. Additionally, following the vaccination dose, the employee must be provided “reasonable” paid time off to recover from any ill effects. OSHA guidance indicates that it will consider up to 2 days of paid time off for recovery to be “reasonable”. This doesn’t mean that less would not be considered reasonable given the circumstances, but 2 days is a reliable standard.

Note, the paid time off required by the ETS is subject to additional limits regarding whether it may be offset by other accrued leave time. Paid time for the employee to get vaccinated must be provided in addition to any other accrued paid time off that could be used for purposes other than COVID-19 vaccination. Recovery time, on the other hand, may be deducted from accrued sick time (or other unspecified leave), but the employer cannot require the employee to use specified vacation time or borrow against future accruals or “go negative” in their sick leave accrual. Employers who have implemented COVID-19 vaccination-related time off already may already satisfy this requirement and not need to provide additional PTO.

• Ensure all unvaccinated employees wear masks in the workplace, with limited exceptions. The ETS has specific definitions of masks and face coverings. In general, a typical, sturdy, tightly woven, two-layer fabric mask that covers the nose, mouth and chin should meet the requirement. Additional protection like plastic face shields and respirators are also permitted.

Note, in state/local areas that ban businesses from requiring masks for all employees, the ETS requirement is structured such that it intends to preempt (or stand in the place of) such restriction for unvaccinated employees, but potentially not for vaccinated employees. Employers who wish to have all employees wear masks should consult with their legal counsel to determine how to avoid: (1) the effort of policing masks for only unvaccinated employees, and (2) having a workplace with visible differences in mask-wearing for vaccinated and unvaccinated employees.

• Collect appropriate proof of vaccinated status for all covered employees. There are several forms of acceptable proof (e.g. CDC COVID-19 Vaccination Record Card or copy of other immunization records from a pharmacy, health care provider or state public health agency). An employee’s attestation is acceptable if they are unable to produce other proof and under certain additional requirements. In some cases, employers that previously ascertained that an employee was fully vaccinated prior to the ETS may be able to rely on that prior effort instead of collecting new proof, however, there are limitations and employers should check with legal counsel.

Note, the proof documentation is subject to disclosure to OSHA, but it is also subject to certain privacy restrictions and should be appropriately protected.

• Create a roster of vaccinated status for all covered employees. This can be as simple as a spreadsheet but must be maintained and should be able to be filtered by workplace location so that the reporting requirements can be met on a timely basis.

Note, this information is additionally subject to disclosure to OSHA, but it is also subject to certain privacy restrictions and should be appropriately protected.

• Require employees to provide notice of any positive COVID-19 test or diagnosis and ensure that the employee is immediately removed from the workplace. The ETS does not require the employer to pay the employee when he or she is removed and not working during this time, but other state/local or contractual requirements may apply. The employee may return after meeting certain requirements, including negative test results, quarantine, or documentation from a health care provider.
• Provide notice and certain information to employees. The employer must provide information about its written mandatory vaccination policy and any procedures required to implement it. Additionally, employers must provide information about OSHA’s employment protections and penalties, and a specified educational document entitled “Key Things to Know About COVID-19 Vaccines” from the Centers for Disease Control and Prevention (CDC).
• Prepare to report/disclose when required by OSHA and asked by employees/employee representatives. The ETS gives OSHA a right to access all the information outlined in the ETS, including individual vaccination documentation and status. Employees or their representative (with written authorization) are entitled to their own information kept by the employer and certain aggregate information on a worksite basis.
• OSHA request for the written mandatory vaccination policy, and the number of vaccinated employees and total employees at a workplace must be provided within 4 business hours.
• OSHA request for any other information must be provided by the end of the next business day.
• Report to OSHA each “work-related COVID-19”:
• fatality within 8 hours of learning about the fatality; and
• in-patient hospitalization within 24 hours of learning about the hospitalization.
• Employee/representative’s requests for documentation must be provided by the end of the next business day. This applies to requests for their own documentation, including test results, as well as the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

By January 4, 2022:

For employers that allow unvaccinated (or not fully vaccinated) employees to test and wear face coverings, the weekly testing protocol must be implemented by January 4, 2022.

• Testing at least once every 7 days. For any employee who is not “fully vaccinated” (other than those who have received the second shot of a two-shot vaccine within the 2 weeks prior to January 4, 2022) the employer must ensure that they are tested for COVID-19 at least once every 7 days if they report to a workplace at least once every 7 days. For any employees not fully vaccinated who report to a workplace less frequently than once every 7 days, that employee must be tested for COVID-19 within the 7 days prior to returning/reporting to the workplace.
• Test result documentation must be collected and retained by the employer. All test results must be timely provided to the employer by the employee or health care provider to and retained by the employer for each employee within certain timelines. These results must be made available to OSHA and the employee upon request in-line with the disclosure requirements.
• COVID-19 positive or unknown test results require removal. For any employee with a positive COVID-19 test or who does not have a completed test for the applicable seven-day period, they are to be removed from the workplace (i.e., not allowed to be in-person with other employees or customers).

Testing Complications

While OSHA allows some flexibility for employers to define the testing protocol that will work for their circumstances, certain elements will take time for employers to chart a path forward and implement.

• No self-administered and self-read tests. While the ETS permits “at-home” and other self-administered tests, it does not permit employers to rely on the “honor system” for employees to simply interpret and report the results. For at-home or other self-administered tests, the test and result must be witnessed by an employer representative or other health care proctor to be acceptable.

Some employers may choose to require health care provider testing or on-site/near-site clinic testing to avoid this issue, but that may result in higher costs. Others may identify company representatives who will witness and read the test to affirm the result. No matter which method to proctor the tests, it will take resources to ensure the testing process meets the standard.

• Costs – a potential thicket to navigate. Although the ETS explicitly states that employers are not required to pay for the cost of testing and that such cost can be shifted to the employee, there are many factors that may limit the practical ability to have employees pay for the testing, including:
• State/local laws requiring employers to cover the cost of any work-related expenses;
• Collective bargaining agreements with broad terms requiring employers to cover work-related costs;
• Health plan limitations in distinguishing between medically necessary (exposure or symptomatic testing) versus surveillance testing or otherwise the testing under the ETS. Provider service coding and claim submission practices and carrier/TPA ability to impact such practices may not align with an employer’s intent not to pay for ETS testing through the plan.

We will provide updated information as it develops from OSHA or the legal proceedings. Please to contact Garrett Hohimer, Director, Policy & Advocacy for comments or assistance.

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