On November 5, the Occupational Safety and Health Administration (OSHA) published its emergency temporary standard (ETS) requiring certain employers to implement a mandatory COVID-19 vaccination policy or a weekly testing and mask policy. A complete copy of the ETS can be accessed here.
 
OSHA published its ETS to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address what it asserts is the “grave danger” of COVID-19 in the workplace. OSHA also intends for its ETS to preempt state and local laws that interfere with the employer’s authority to require vaccination, face covering, or testing.
 
The ETS requires employers to comply with provisions other than testing for employees who have not completed the entire primary vaccination by December 5. The ETS requires employers to comply with provisions for testing of employees who have not received all doses required for a primary vaccination by January 4, 2022. 
 
On November 6, one day after OSHA published the ETS in the Federal Register, the United States Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS pending further legal briefing and action. The Fifth Circuit wrote that the pending lawsuit, one of several lawsuits filed around the country, raised “cause to believe that there are grave statutory and constitutional issues” with the ETS. For now, the emergency stay temporarily halts enforcement of the ETS at least for employers located the states located within the Fifth Circuit, which includes Louisiana, Mississippi, and Texas. It is unclear what, if any, impact the Fifth Circuit’s language in its ruling has on employers outside the Fifth Circuit. However, it is important to note that the Fifth Circuit’s emergency stay is only temporary. As such, it is important for employers to prepare for the enforcement of the ETS. 
 
Does the ETS apply to your company?
 
The ETS applies to employers in the construction industry who employ 100 or more employees. The employee count is taken from a corporate-wide perspective, rather than by looking at the number of employees in each separate office of the employer. The ETS remains in place for six months following its publication date in the Federal Register, or six months from November 5. If at any time while the ETS remains in place an employer employs 100 or more employees, the company is subject to the requirements of the standard. 
 
Construction employers which employ 100 or more employees, but are subject to the “Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,” are not covered by the ETS. 
 
Notably, not every employee working for a covered employer will be subject to the vaccination or testing requirements in the ETS. Employees who do not report to a workplace where coworkers or customers are present are exempt from the requirements of the rule. Also exempt are employees who are working from home.
 
What about employees who work exclusively outdoors?
 
Of particular importance to the construction industry, other employees exempt from the requirements of the rule include those that work exclusively outdoors. OSHA has clarified that this exception only applies to employees who work outdoors for the duration of every workday except for de minimis use of indoor spaces. The exemption does not apply to construction workers who are working inside an ongoing construction project where substantial portions of the structure are in place, such as walls and ceilings that would impede the natural flow of fresh air at the job site. 
 
Defining “COVID-19 Test” and “Fully Vaccinated”
 
Compliance with the ETS requires employers to become familiar with how the ETS defines a “COVID-19 test” and how the ETS defines “fully vaccinated.” The ETS defines a “COVID–19 test” as a test for SARS–CoV–2 that is: (i) Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the 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. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer. A home-test is not permitted unless it meets all of these requirements and the specific collection is observed by the employer or an authorized telehealth proctor.
 
The ETS defines “fully vaccinated” as a person’s status 2 weeks after completing primary vaccination with a COVID–19 vaccine with, if applicable, at least the minimum recommended interval between doses. The vaccine must be one that is approved, authorized, or listed: (A) Approved or authorized for emergency use by the FDA; (B) listed for emergency use by the World Health Organization (WHO); or (C) administered as part of a clinical trial at a U.S. site, subject to other requirements in the ETS. The ETS also permits “mixed dose” vaccinations, subject to additional details in the ETS. 
 
Policy Requirements
 
The ETS does require covered employers to establish, implement and enforce a mandatory vaccination policy, unless the employer has a written policy permitting each employee to choose between vaccination or providing proof of regular testing and wearing a face covering. The policy must comply with certain requirements, as set forth in the ETS. OSHA has published a sample mandatory vaccination policy, which can be accessed here, and it also published a policy with a testing and mask wearing alternative, which can be accessed here.
 
Covered employers choosing a mandatory vaccine policy must have the policy in writing and require all existing and new employees to be fully vaccinated, other than employees with medical contraindications, for whom medical necessity requires a delay in vaccination, or who are legally entitled to a reasonable accommodation based on disability or sincerely held religious belief.
 
Proving Vaccination Status and Employee Roster Requirement
 
The ETS also requires covered employers to determine the vaccination status of each employee, to maintain records of each employees’ vaccination status, and to maintain a roster of each employees’ vaccination status. This information must be collected from every employee, regardless of vaccination status. Covered employers are required to preserve acceptable proof of vaccination. Proof of vaccination and the employee roster are considered to be and maintained as employee medical records while the ETS is in effect. Importantly, these records are not subject to OSHA’s 30-year record retention requirement.
 
The ETS also explains what is acceptable proof of an employee’s vaccination status. Under the ETS acceptable proof of an employee’s vaccination status includes: (1) a record of immunization from a health care provider; (2) a copy of a COVID-19 vaccination record card; (3) a copy of medical records documenting the vaccination; (4) a copy of an immunization record from a public health, state, or trial immunization system; (5) or a copy of other official documentation containing the type of vaccine, date(s) of administration, and the name of the health care professional or clinic administering the vaccine. An employee’s signed and dated attesting is only acceptable proof of an employee’s vaccination status where the employee has lost or is otherwise unable to produce other acceptable proof, and the attestation includes language required by the ETS.
 
Employers which have asked employees about their vaccination status prior to the effective date of the ETS and retained records of employee responses are not required to re-evaluate the vaccination status for fully vaccinated employees. These employers are also permitted to rely on records purportedly proving vaccination status, even though those records may not be acceptable records under the ETS. These employers are still required to create a roster of each employee’s vaccination status and maintain proof of vaccination status as medical records while the ETS is in effect.
 
Paid Leave for Vaccinations
 
The ETS also requires covered employers to provide support for employees who will be getting vaccinated in response to the ETS. The ETS requires covered employers to provide up to four hours of paid time, including travel time, for each primary vaccination series dose. The ETS also requires covered employers to provide a reasonable amount of paid sick leave to employees for employees to recover from any side effects experienced following each primary vaccination series dose. Employers are permitted to require that employees use any accrued paid sick leave benefit offered by the employer for this time away from work, but if the employee is without any accrued sick leave, the employer must still provide the paid leave.
 
Testing Option
 
Employees who are not fully vaccinated and report at least once every seven days to a workplace where coworkers or customers are present, and not otherwise exempt from the requirements of the ETS, must be tested at least once every seven days and provide their employer with test result documentation. Employees who do not provide test result documentation when required must be removed from the workplace. These employees may only return to the workplace after providing test result documentation. Test result documentation is considered a medical record and be maintained as such, while the ETS is in effect. These records are also not subject to OSHA’s 30-year record retention requirement.
 
For unvaccinated employees who do not report to a workplace where coworkers or customers are present for a period equal to or longer than seven days must be tested within seven days prior to returning to the workplace, with testing documentation to be provided upon return to the workplace.
 
Significantly, the ETS does not require the employer to pay for any costs associated with testing, although the employer may choose to do so. However, payment for the testing may be required by other laws, regulations, collective bargaining agreements, or collectively negotiated agreements. Indeed, if the employee’s cost for the testing has the result of bringing the employee’s wages for the week below minimum wage, this would present a violation of the Fair Labor Standards Act (FLSA). Moreover, state law may come into play on whether an employer can require the employee to be responsible for this cost. Notably, the ETS is silent on whether employers must pay employees for the time spent getting tested. If, however, testing occurs during the middle of a work shift, under the FLSA, employers may be required to pay for that time spent testing.
 
Different testing rules apply to employees who have tested positive for COVID-19 or received a positive diagnosis by a licensed health care provider. In these instances, the employer is prohibited from requiring regular COVID-19 testing for 90 days after the positive test result or positive diagnosis.
 
Mask Wearing Requirements
 
Unvaccinated workers are also subject to mask wearing requirements within the ETS. Covered employers must ensure employees who are not fully vaccinated wear a face covering which complies with CDC guidelines when indoors or when occupying another vehicle with another person for work purposes. Exceptions to this mask wearing requirement apply when the unvaccinated employee is alone in a fully enclosed room with the door closed, when eating or drinking or for safety and security identification purposes, when wearing respirators or facemasks, or where the use of a face covering is infeasible or creates a greater hazard.
 
Isolation Guidance
 
Regardless of vaccination status, the ETS provides that covered employers must require each employee to promptly notify the employer that they are COVID-19 positive following receipt of a positive test result or diagnosis. The ETS requires the employer to immediately remove the employee from the workplace. The employee who is COVID-19 positive may only return to work when they receive a negative result on a confirmatory COVID-19 Nucleic Acid Amplification Test (NAAT) following a positive result on a COVID-19 antigen test, or when the CDC’s isolation guidance criteria is met, or when recommended by a licensed health care provider. The ETS does not require employers to pay employees who are away from the workplace because they are COVID-19 positive, although pay may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
 
Keeping Employees Informed
 
The ETS also requires covered employers to provide information regarding the requirements of the ETS to their employees, workplaces policies and procedures established to implement the ETS, COVID-19 vaccine efficacy, safety, and benefits by providing the CDC document, “Key Things to Know about COVID-19 Vaccines,” the non-discrimination and anti-retaliation requirements under OSHA, and the prohibitions of U.S. law and OSHA which provide for criminal penalties associated with knowingly supplying false statements or documentations, such as a false COVID-19 vaccination card. The information must be provided to each employee in a language and literacy level understood by the employee. 
 
Recordkeeping and Reporting Requirements
 
Lastly, the ETS contains reporting and recordkeeping requirements. Work-related COVID-19 fatalities must be reported to OSHA within eight hours of learning of the fatality. Moreover, unique to the ETS, the requirement to report these fatalities is not limited by the length of time between the work place exposure and the employee’s death. Work-related in-patient hospitalizations due to COVID-19 must be reported to OSHA within 24 hours of learning of the in-patient hospitalization. 
 
The ETS requires that covered employers make available to its employees and anyone having written consent individual vaccine information and test results, and to do so by the end of the next business day after the request is made. Information on the aggregate number of fully vaccinated employees at the work place and the total number of employees at that work place must also be provided to any employee or employee representative by the end of the next business day after the request is made. This information must be provided to OSHA within four business hours of OSHA’s request. Similarly, the employer’s written vaccination policy required by the ETS must be made available to OSHA within four business hours of when the request was made. All other records and documents required by the ETS must be produced to OSHA by the end of the next business day after the request is made.
 
OSHA has a website that offers fact sheets regarding the ETS, compliance assistance materials, frequently asked questions, and enforcement policies and information, all of which can be accessed here. If you have any questions about OSHA’s ETS, please contact Philip Siegel. You can e-mail Philip by clicking here, or you can call him directly at (404) 469-9197.