THE LAW FIRM FOR EMPLOYERS
Compliance Matters TM
OSHA Issues Vaccination Rule For Larger Employers 
(COVID-19 Update)
The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released the highly anticipated Emergency Temporary Standard (“ETS”) on November 4, 2021. The ETS implements President Biden’s sweeping Executive Order from early September, requiring unvaccinated employees of large employers (100+) to receive weekly COVID-19 testing. The near 500-page document discusses the requirements at length and offers medical justifications and legal defenses for the broad ETS.

The main takeaway of the ETS is that employers with 100 or more employees must develop and enforce written safety policies that require either (1) mandatory vaccination for all employees, absent an exemption for medical conditions or religious beliefs; or (2) forgo mandatory vaccination and require all unvaccinated employees to wear face coverings and provide weekly negative COVID-19 test results. OSHA strong encourages employers to adopt the first option (mandatory vaccination) but permits the testing option as an acceptable alternative.


Important Dates
          
  • December 5, 2021. Employers must have their policies and procedures in place as every requirement except for weekly testing of unvaccinated employees goes into effect on that date. Such requirements include determining the vaccination status of all employees, mandatory face coverings for unvaccinated employees, paid vaccination leave, recordkeeping and reporting requirements, and informing employees of the employer’s policies and procedures.
 
  • December 5, 2021. States with OSHA-approved “State Plans” (e.g., California) must issue their own ETS that is at least as effective as OSHA’s. Employers in these states will need to comply with the ETS issued by their state.
 
  • January 4, 2022. Unvaccinated employees cannot enter the workplace unless they submit weekly negative COVID-19 test results.

Legal Challenges

An avalanche of lawsuits were filed challenging OSHA’s ability to promulgate and enforce the ETS immediately after its release. The litigation hinges on whether COVID-19 still poses a “grave danger” to employees, as required for OSHA’s authority to engage in emergency rulemaking.

A Fifth Circuit panel temporarily froze the rule on November 7th, citing “grave statutory and constitutional issues” with the regulations. Similar cases have also been filed in different federal circuits across the country. The U.S. Department of Labor will have time to respond but as it currently stands, OSHA is blocked from enforcing the ETS while its legality is litigated. Accordingly, it is unclear when or if the ETS will go into effect.

Interaction with State & Local Regulations

The ETS only establishes minimum standards for large employers. Meaning, states and localities can enforce COVID-19 regulations that are more restrictive than the ETS (e.g., vaccination and face covering mandates in cities like Los Angeles, San Francisco, and New York). Employers in these states need to comply with both the ETS and the regulations of their locality.

On the other hand, OSHA is taking the position that the ETS supersedes state and local regulations that are less restrictive than the ETS. Thus, large employers in states that prohibit or restrict face coverings and/or vaccination mandates must still comply with the ETS.

Approximately twenty-one states (including California) have OSHA-approved “State Plans” related to occupational safety and health standards. These states are required to promulgate their own Emergency Temporary Standards that are at least as effective as OSHA’s by December 5, 2021. Large employers in one of these states – including California – will need to comply with the regulations of their state, not those in OSHA’s ETS. The state regulations will be at least as restrictive as OSHA’s ETS and may be even more onerous.

However, at this time, it is unclear whether the legal challenges to OSHA's ETS will also delay those states with OSHA approved State Plans (such as California) from promulgating their own Emergency Temporary Standards. 

Covered Employers

The ETS applies to all private sector employers with 100 or more employees at any time while the ETS is in effect. Pertinent issues are addressed below:

  • Calculating Employees for the Threshold. The calculation of employees for purposes of the 100 employee threshold is done at the employer level (firm or corporate wide), not the individual location level. Thus, a single employer with multiple locations must count all of its employees at all locations.

  • Fluctuating Workforces. If an employer has 100 or more employees at any time while the ETS is in effect, it is covered by the ETS until the standard is no longer in effect. For example, if an employer has 103 employees in February and then drops to 70 employees the next month, it will remain covered by the ETS.  

  • Part-time Employees. They are counted for purposes of the threshold.

  • Temporary & Seasonal Employees. They are counted if employed directly by the employer.

  • Independent Contractors. They are excluded from the calculation.

  • Employees from Staffing Agencies. Where employees of a staffing agencies are placed at a host employer location, only the staffing agency counts the workers for purposes of the threshold.

  • Franchisor/Franchisee Relationships. If a traditional franchisor-franchisee relationship exists, in which each franchise location is independently owned and operated, the franchisor would only count “corporate” employees and each franchisee would only count employees of that individual franchise.

The following are exempt from the requirements of the ETS:

  • Federal Contractors & Subcontractors. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors are exempt.

  • Healthcare Settings. Settings covered by the Healthcare ETS are exempt.

Covered Employees

All employees, whether part-time or full-time, are covered by the ETS if they are employed by a covered employer, with the following exceptions:

  • Working Alone. Employees who do not report to a workplace where other persons are present (e.g., coworkers or customers).

  • Telework. Employees who work from home.

  • Work Exclusively Outdoors. An employee works “exclusively outdoors” if he or she: (1) works outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt); (2) does not routinely occupy vehicles with other employees as part of work duties (i.e., does not drive to worksites together in a company vehicle); and (3) works outdoors for the duration of every workday except for brief and minor use of indoor spaces where other individuals may be present.

There is no exemption for employees working under a collective bargaining agreement.

Employer Obligations

Once an employer determines that they are covered by the ETS, they must comply with a multitude of obligations. The various obligations and compliance deadlines are described below.

Determining Vaccination Status. Covered employers must determine the vaccination status of all covered employees by December 5th. In doing so, employers must require their covered employees to provide requisite proof of vaccination. Acceptable proof of vaccination includes:

  • Record of immunization from a healthcare provider or pharmacy;

  • Copy of COVID-19 vaccination record card;

  • Copy of medical records documenting the vaccination;

  • Copy of immunization records from a public health information system; or

  • Copy of other official documentation that contains the type of vaccine administered, date(s) of administration, and name of health care professional or clinic that administered the vaccine. 

If an employee is unable to provide acceptable proof of vaccination, he or she can provide a signed or dated statement subject to criminal penalties attesting to their vaccination status and that they have lost or are otherwise unable to produce the requisite proof of vaccination.

Face Covering Requirement. Beginning December 5th, all covered employees who are not “fully vaccinated” (i.e., 14 days have not passed since their final vaccination dose) must wear face coverings when indoors or when occupying a vehicle with another person for work purposes, except in the following circumstances:

  • When alone in a room with floor to ceiling walls and a closed door;

  • For a limited time when eating or drinking in the workplace;

  • For a limited time for identification purposes in compliance with safety and security requirements; or

  • Where the use of face coverings is infeasible or creates a greater hazard.

Acceptable face coverings must satisfy all of the following:

  • Completely cover nose and mouth;

  • Is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source);

  • Is secured to the head with ties, ear loops, or elastic bands that go behind the head;

  • Fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and

  • Is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings.

Employers must ensure that employees who are not fully vaccinated follow the mask requirements and replace face coverings when they are wet, soiled, or damaged.

Paid Vaccination Leave. Effective December 5th, employers must provide up to four (4) hours of paid time, including travel time, at the employee’s regular rate of pay to receive COVID-19 vaccination. Additionally, employers must provide a “reasonable amount” of paid time to recover from side effects experienced following vaccination. Employers can require employees to use any accrued paid sick leave under its own policy when taking time off work to recover from side effects of a vaccine. However, employees cannot be required to use advanced sick leave, to accrue negative paid sick leave, or borrow against future paid sick leave. While a "reasonable amount" of time to recover from side effects of a vaccine is not defined, OSHA guidance provides that up to two days of paid sick time per vaccination dose is presumed to be compliant.

Recordkeeping. Starting December 5th, employers must maintain the following records as confidential medical records:

  • Each employee’s vaccination status;

  • Preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated;

  • A roster of each employee’s vaccination status; and

  • Each COVID-19 test result provided by employees.

Reporting Requirements. As of December 5th, employers must report each work-related COVID-19 fatalities within eight (8) hours of knowledge and each work-related COVID-19 in-patient hospitalization within twenty-four (24) hours of knowledge to OSHA.

Exclusion of COVID-19 Cases. Beginning December 5th, employers must require employees to promptly notify them when they are diagnosed with or test positive for COVID-19. An employee who is diagnosed with or tests positive for COVID-19 cannot return to work until he or she:

  • Meets the return to work criteria in the CDC’s “Isolation Guidance;”

  • Receives a recommendation to return to work from a licensed healthcare provider; or

  • Receives a negative result from a nucleic acid amplification test (NAAT) if the initial positive test result was from an antigen test.

Written Policy. Covered employers must develop and implement a written policy on COVID-19 vaccination no later than December 5th. The policy must either mandate vaccination or have a testing option for unvaccinated employees. The policy should address all of the applicable requirements under the ETS (e.g., determination of vaccination status, face covering requirements, paid vaccination leave, testing procedures, etc.).

Communications to Employees. No later than December 5th, employers must inform their employees, in a language that the employee understands, of the following:

  • The requirements of the ETS and the employer’s implementing policies and procedures (i.e., the written policy);

  • Provide the CDC document “Key Things to Know About COVID-19 Vaccines”;

  • That the employer is prohibited from discriminating against an employee for reporting a work-related injury or illness or as a result of exercising any rights under the ETS; and

  • That employees will be subject to criminal penalties for knowingly supplying false statements or documentation.

Testing for COVID-19. Beginning January 4th, all covered employees who are not fully vaccinated and report to workplaces at least once every seven (7) days where other people are present must:

  • be tested for COVID-19 once every seven days; and

  • provide documentation of their most recent COVID-19 test result to their employer within seven days of their previous test result.

Covered employees who do not report to a workplace where other people are present must be tested within seven (7) days prior to returning to the workplace and provide documentation of that test result to their employer upon return.

Other Matters of Importance:

  • Acceptable Tests. A COVID-19 test is only acceptable if it: (1) is cleared, approved, or authorized (including by Emergency Use Authorization) by the FDA to detect current infection with SARS-CoV-2 (e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

  • Antigen (“Rapid”) Tests. Over the counter antigen tests approved by the FDA are acceptable COVID-19 tests. However, if the test is self-administered then it must be observed by either the employer or an authorized telehealth proctor.

  • Antibody Tests. Antibody tests and other tests that do not detect current infection are not acceptable.

  • Testing After a Positive Result. If an employee receives a positive test result or has been diagnosed with COVID-19, the employer cannot require that employee to undergo COVID-19 testing for a period of 90 days.

  • Exception for Those Who Receive Final Vaccination Dose Close to January 4th. Employees who have received their final vaccination dose before January 4th, but 14 days have not passed since their final dose do not need to be tested.

  • Paying for Testing. The ETS does not require employers to pay for the cost of the COVID-19 test or the time spent taking the test. However, the ETS states that employers may be otherwise required to pay for testing costs under other laws. Thus, employers in states like California are required to pay for the cost of the test and any time spent receiving the test.

  • Special Note for Unionized Employers. The National Labor Relations board announced on Wednesday that unionized employers have a duty to bargain over any discretionary aspect of the OSHA ETS before implementation. In addition, employers are obligated to engage in effects bargaining over the impact of the rule on union members before implementing the policy.

We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.


Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP 
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