OSHA ETS Workplace Vaccination Rule – Status and Next Steps

November 19, 2021

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued its Emergency Temporary Standard (“ETS”) to minimize the risk of COVID-19 transmission in the workplace. The ETS establishes mandatory requirements to protect unvaccinated employees of large employers of 100 or more employees from the risk of contracting COVID-19 at work. Below is a high-level summary of the ETS, which will be updated as necessary to reflect additional guidance published by OSHA.

Notwithstanding its enactment, the fate of the ETS is up in the air as on November 12, 2021 the Fifth Circuit Court of Appeals issued a decision ordering a stay of the ETS pending a decision on plaintiff’s request for a permanent injunction.  The Fifth Circuit instructed OSHA to “take no steps to implement or enforce” the ETS “until further court order.”  In response, OSHA has stated that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Additional lawsuits challenging the ETS have been filed in other circuits.  Given the number of cases, the litigation concerning the ETS will be consolidated and heard by the Sixth Circuit Court of Appeals – the court selected through the U.S. Judicial Panel on Multidistrict Litigation’s lottery system – and may make its way up to the U.S. Supreme Court.  We will provide additional updates on the status of the ETS litigation as we learn more.

Given OSHA’s suspension of ETS enforcement, employers covered by the ETS will not need to comply with the ETS deadlines summarized below unless and until the litigation concerning the ETS is resolved in OSHA’s favor. Covered employers should still prepare for the ETS and contact legal counsel to discuss the ETS provisions and the development of relevant policies.

Summary of the OSHA ETS:

Covered Employers: The ETS generally applies to all employers with 100 or more employees in all workplaces that are under OSHA’s authority and jurisdiction at any time the ETS is in effect. The ETS, however, does not apply to workplaces under the “Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors”, or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS.

Covered Employees: The ETS applies to all full-time and part-time employees but does not apply to employees (1) who work entirely remotely (i.e., do not report to a workplace where other individuals are present), (2) employees while they are working from home, or (3) employees who work exclusively outdoors.

Effective Dates: By its terms, the ETS is effective immediately, and requires employers to meet all ETS requirements except for testing for employees by December 6, 2021.  Testing requirements must be met by January 4, 2022.  As noted above, OSHA has suspended its enforcement authority while the litigation challenging the ETS is pending, so covered employers likely will not need to comply with the aforementioned deadlines until further notice.

Required Worker Protections:  Under the ETS, covered employers must do the following:

  • Develop, implement, and enforce a written mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a written policy allowing employees who are not fully vaccinated to elect to undergo weekly testing and wear face coverings in the workplace.
  • Provide certain exemptions to the vaccination rule, specifically for (1) employees where a vaccine is medically contraindicated; (2) employees who have a medical necessity requiring a delay in vaccination; (3) employees who have a disability in conflict with the vaccine requirement; and (4) employees who have a sincerely held religious belief, practice, or observance that conflicts with the vaccine requirement.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support employee vaccination by providing employees reasonable working time, including up to four (4) hours paid time, to receive each vaccination dose, and reasonable time for paid sick leave to recover from side effects experienced following each does, which OSHA has indicated would be two paid sick days for each vaccination dose.
  • Ensure that each employee who is not fully vaccinated (i.e., partially vaccinated employees, employees with approved exemptions to vaccination and unvaccinated employees who object to vaccination on a non-exemption qualifying ground) is tested for COVID-19 (1) at least weekly if the employees goes to the workplace at least once a week, or (2) within 7 days before returning to work if away from the workplace for a week or longer. The ETS does not require employers to pay for costs associated with testing but employers may voluntarily assume such costs, and may otherwise be required to pay for testing under state and/or local laws, regulations, or collectively bargained or negotiated agreements. COVID-19 tests used must be cleared, approved, and authorized by the FDA, and cannot be “both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”
  • Require employees to promptly provide notice to the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19. Employers must immediately remove any employee from the workplace, regardless of vaccination status, who receives a positive COVID test or is diagnosed with COVID by a licensed healthcare provider, and must keep them removed until they meet other criteria for returning to work. Criteria for returning to work includes the employee (1) receiving a negative COVID-19 test result, (2) meeting the work criteria in the CDC’s “Isolation Guidance”, or (3) receiving a recommendation to return to work from a licensed healthcare provider. Employers are not required to pay for the time the employee must remain away from work, unless payment is required under other federal, state, or local law.
  • Ensure that employees who are not fully vaccinated wear face coverings that completely cover the employee’s nose and mouth when indoors or when occupying a vehicle with another person for work purposes, except (1) when an employee is alone in a room with a floor to wall ceiling and the door close; (2) for a limited time when eating or drinking, (3) for identification purposes, (4) when an employee is wearing a respirator, or (5) when the employer can show that the use of the face covering is infeasible or creates a greater hazard that would excuse compliance with the face covering requirement. Employers must also not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (i.e. interfering with the safe operation of equipment).
  • Provide employees in a language and literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures to implement the ETS; (2) the CDC document, “Key Things to Know About COVID-19 Vaccines; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and all work-related COVID-19 hospitalizations within 24 hours of the employer learning about them.
  • Make available for examination and copying an employee’s COVID-19 vaccine documentation and COVID-19 test results to that employee and to anyone that has written authorized consent from that employee. Employers shall also make available to employees information regarding the total number of vaccinated employees at the workplace and the total number of employees at that workplace.

Should you have any questions about the ETS, please contact Eaton Peabody Labor and Employment Practice Group attorneys Sarah Newell (snewell@eatonpeabody.com), Matt Raynes (mraynes@eatonpeabody.com), Katie Porter (kporter@eatonpeabody.com), or Jack Bjorn (jbjorn@eatonpeabody.com) for additional assistance

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