November 9, 2021
By: Kimberly Klein
Finding that COVID-19 is a grave danger to unvaccinated workers, the Occupational Safety and Health Administration (“OSHA”) issued its long-awaited emergency temporary standard (ETS) on November 4, 2021, roughly two months after President Biden signed an executive order requiring businesses with 100 or more employees to mandate vaccinations or implement weekly testing protocols. Employers that fail to enforce the ETS could face fines of up to $13,653 per day. Already one federal appellate court has issued an order temporarily blocking the vaccine mandate after multiple states sued.
Covered employers are required to develop, implement and enforce written policies on COVID-19 vaccinations for their workforces. Employers may establish a written vaccination policy requiring each employee to be fully vaccinated with the following exceptions: (1) those for whom a vaccine is medically contraindicated; (2) those for whom medical necessity requires a delay in vaccination; or (3) those who are legally entitled to a reasonable accommodation under federal law due to a disability or sincerely held religious belief, practice or observance that conflicts with the vaccination requirement. Alternatively, employers can establish a written policy that allows employees to choose either (i) to be fully vaccinated; or (ii) to both undergo weekly testing and wear a face covering.
Employers may also choose to require vaccination of a subset of its employees as a result of the nature of their work (e.g., public facing), while offering others the testing option. Employers are not responsible to pay for costs associated with employee testing. While the ETS took effect November 5, 2021, employees must be vaccinated or start weekly testing by January 4, 2022. Employers must require unvaccinated employees to wear face coverings and to provide paid time off for vaccinations by December 5, 2021.
Mandated vaccine policies must also provide the following:
- Information about COVID-19 and vaccine efficacy and safety;
- How the employer will determine employee vaccination status and how the information will be collected and maintained;
- Paid time and sick leave for employees to get vaccinated, including recovery from the vaccination;
- How employers will notify their workforce when there is a positive COVID-19 test;
- Removal of employees from the workplace who test positive for COVID-19;
- Timeframes for compliance with the policy, including deadlines for getting vaccinated and/or submitting vaccination information;
- Procedures for compliance and enforcement of testing requirements, which may vary depending on how often the employee physically reports to the workplace;
- Circumstances under which testing requirements are suspended;
- The use of mandatory face coverings for unvaccinated workers, including procedures for employee compliance;
- How the policy applies to new hires;
- Disciplinary action for those who do not abide by the policy, including criminal penalties for knowingly supplying false statements or documentation concerning vaccination status; and
- Protections against retaliation and discrimination.
Employers with existing COVID-19 policies, must review their policies to make sure they satisfy all ETS requirements. Employers must provide the information to employees in a language and at a literacy level the employee can understand. Employers must also report work-related COVID-19 fatalities to OSHA within 8 hours of learning about the fatality and within 24 hours of learning about a work-related COVID-19 in-patient hospitalization.
Which Businesses Must Comply
Only employers who employ 100 or more workers are subject to the ETS. An employer must include all employees at each of its location within the United States, regardless of where employees perform their work, including those who work from home and those who work part-time. Independent contractors, however, are not included. The ETS provides the following examples for different corporate structures and relationships:
- A single corporate entity with multiple locations must count all employees at all of its locations for purposes of the determining the 100-employee threshold;
- Companies made up of two or more related entities could be considered a single integrated employer, depending on whether the entities share certain functions such as handling safety matters;
- Franchisor-franchisee relationships will be considered separate, where the franchise location is independently owned and operated;
- Staffing agency employees will be counted as employees of the staffing agency and not the host company; and
- On multi-employer worksites, such as construction sites, each company – the host employer, general contractor and each subcontractor – will be considered a separate employer; however, each employer still needs to count the total number of employees at each worksite to determine eligibility.
The following workplaces are not covered by the ETS:
- A workplace covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
- Workplaces that provide healthcare services or healthcare support services;
- Workplaces with fewer than 100 total employees; and
- Public employers in states without OSHA-approved state plans.
In addition, not all employees must follow the ETS. Employees who do not report to a workplace where other individuals are present, who work from home or who work exclusively outdoors, do not have to follow the mandates. Employees who work partly indoor and partly outdoors, will be subject to the mandates.
The law preempts inconsistent state and local requirements that ban or limit employers’ authority to require vaccination. OSHA currently is assessing whether it is feasible for businesses with fewer than 100 employees to also fall within the vaccination and/or testing mandates. According to OSHA, the adoption of the ETS will effect two-thirds of all private sector workers in the United States.
Moses & Singer attorneys can help you draft mandatory vaccination policies and advise you relating to the requirements of the ETS. Please contact Kimberly Klein at 212.554.7853.