The fate of the OSHA ETS is unclear. Employers should prepare now as if the ETS will go into effect.
OSHA ETS Enjoined
On November 6, the Court of Appeals for the Fifth Circuit issued an emergency stay with regard to the OSHA ETS on COVID-19 Vaccination and Testing (ETS). The panel cited “grave statutory and constitutional issues.” The Fifth Circuit's stay applies nationally.
The Fifth Circuit is presently scheduled to determine this week whether to issue a preliminary injunction to enjoin enforcement of the ETS. The issuance of a preliminary injunction would appear to be reasonably likely.
However, with multiple lawsuits against the OSHA ETS filed in several circuit courts, the federal rules for multicircuit litigation allow OSHA to compel consolidation of the cases so that they will be heard by one circuit court chosen by a lottery. It appears the Fifth Circuit issued its emergency stay before the lottery was held.
Therefore, after the lottery is held, the case will be transferred to the circuit that is the "winner" of the lottery. The circuit court to which the case is transferred could lift the stay (or preliminary injunction, if issued) and rule otherwise. Regardless, the ruling of the circuit that wins the lottery ultimately will make the decision for the entire U.S. federal court system, pending any further review and action by the Supreme Court of the United States.
The fate of the OSHA ETS is unclear. Employers should prepare now as if the ETS will go into effect.
It also should be noted the Fifth Circuit did not stay Executive Order 14042 (certain federal contractor and subcontractors) or CMS regulations (most healthcare providers).
Of course, nothing in the litigation over the OSHA ETS affects the rights of employers to implement mandatory vaccination and/or testing programs voluntarily. Most programs have and should survive legal challenge if drafted and implemented appropriately.
Overview of ETS
OSHA’s new ETS requires employers with 100 or more employees to develop and implement a policy requiring that employees either become fully vaccinated or undergo weekly testing and wear a face covering at work. The ETS also requires employers to determine and document each employee’s vaccination status, provide paid time to employees to become vaccinated and reasonable time and paid sick leave to recover from any side effects, remove employees from the workplace who test positive or are diagnosed with COVID-19 and report COVID-19 fatalities and hospitalizations to OSHA.
The ETS includes limited preemption language. The ETS provides that it preempts state and local laws that conflict with its requirements, including bans or limits on employers’ authority to mandate vaccination, face coverings or testing. Therefore, state laws that preclude employers from mandating vaccines, such as in Arkansas, Montana, Tennessee and Texas, are preempted (to the extent they prohibit vaccines, testing or masks as required by OSHA). However, we expect the preemption issue to be litigated.
The ETS does not appear to preempt laws that impose obligations that go beyond the ETS.
Covered Employers and Employees
In determining whether an employer has a sufficient number of employees to be covered, full- and part-time employees working at all locations are counted, including those who work at home or exclusively outdoors. Note that while these employees (who work at home or exclusively outdoors) count for coverage, OSHA generally does not mandate that they be vaccinated or tested.
What if an employer has three “related companies,” none of which has more than 100 employees, but combined they do? Are the related companies aggregated? Unfortunately, there is virtually no guidance from OSHA. The ETS is silent, but the preamble states that “… two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.” Since it is unclear whether a court will follow this approach or apply another, employers who aggregate to avoid risk under the ETS need to do so in a way that the aggregation is not an admission under the OSHA Act other laws.
The ETS does not apply to either workplaces covered by Executive Order 14042, mandating vaccines for federal contractors and subcontractors, or to workplace settings in which employees provide healthcare or healthcare support services subject to OSHA’s healthcare ETS (Section 1910.502). Accordingly, some employers will have different workers subject to different requirements, adding complexity to compliance challenges. In some cases, uniformity may be both feasible and desirable.
Note: Employers are not required or permitted to provide employees who are subject to Executive Order 14042 or CMS emergency regulations (which covers most but not all employees covered by OSHA’s healthcare ETS) the option of vaccination or at least weekly testing. Employees covered by the Executive Order or CMS must be vaccinated, unless subject to an exemption for medical or religious reasons. If the employer concludes the employee can work on-site, notwithstanding the absence of a vaccination, testing may be part of the accommodation (but, again, is not an alternative to vaccination but part of an accommodation).
The ETS became effective on November 5, when it was published in the Federal Register. Employers are required to comply with all of its requirements, other than testing, by December 5. Employers must comply with the testing requirements that apply to workers who are not fully vaccinated by January 4, 2022. Of course, it the ETS survives, these dates may change
Key Implementation Requirements and Issues
Employers are required to establish, implement and enforce either: (i) a written mandatory vaccination policy or (ii) a policy requiring that employees either (a) be fully vaccinated or (b) provide proof of regular testing (discussed below) and wear a face covering at work. While OSHA has published model policies, they do not fully address the steps that employers must take to comply with the ETS. Also, OSHA allows employers to mandate the vaccine for some positions (subject to exemptions) and offer others the option of vaccine or test.
For employers with unions, there may be a duty to bargain over which option to apply. Even if the collective bargaining agreement has a robust management rights clause and a zipper clause so that an employer may be able to implement unilaterally, an employer is well advised to consult with the union (without conceding a duty to bargain)
Determining and Documenting Vaccination Status
Employers must determine and document the vaccination status of each employee, including whether the employee is fully vaccinated. The ETS specifies acceptable proof of vaccination, which include copies of COVID-19 vaccination cards and medical records documenting the vaccination. If an employee has lost and is otherwise unable to provide the required documentation, the ETS permits a written and signed employee attestation and specifies the information it must include. If employees fail to provide an acceptable form of proof specified in the ETS, the employee is to be treated as not fully vaccinated. Employers are required to maintain a roster of each employee’s vaccination status and acceptable proof of full or partial vaccination status, which are to be treated as confidential medical records under both OSHA and per EEOC guidance. The ETS also describes the conditions under which employers may rely upon determinations made before November 5 that employees are fully vaccinated.
Employers must provide each employee with reasonable time during work hours to obtain their primary vaccination dose(s), including up to four hours of paid time, including travel. In addition, employers must provide reasonable time and paid sick leave for employees to recover from the side effects of the vaccinations. The ETS does not address whether state or local requirements to pay for any additional time spent to become vaccinated (including travel) are intended to be preempted, although it would be prudent for employers to assume such state or local requirements apply.
The ETS does not specify how much post-jab recovery time or paid sick leave is “reasonable.” However, the preamble to the ETS states:
Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.
OSHA’s template policy also specifies two days.
COVID-19 Testing for Employees Not Fully Vaccinated
Unvaccinated employees reporting at least once every seven days to a workplace where others are present (such as co-workers or customers) must be tested at least once every seven days and provide documentation of the most recent results on or before the seventh day on which they last provided a test result. Employees reporting less frequently to a workplace with others must be tested within seven days before entering the workplace and provide documentation of the results upon their return. The employer must retain the test results, which are considered medical records. These requirements do not apply to employees who have tested positive or been diagnosed with COVID-19 in the prior 90 days. Employees who fail to provide their test results must be excluded from the workplace until they do so. The ETS also describes which tests are acceptable under the standard and which are not. Significantly, tests that are both self-administered and self-read are unacceptable, unless they are observed by the employer or an authorized telehealth proctor.
Paying for Tests
The ETS does not require the employer to pay for any costs associated with testing; however, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. The ETS does not, by its plain words, preempt other laws on this specific issue. Therefore, employers must pay for the test where required by state law; in some states, the payment requirements apply to both exempt and nonexempt employees. Even where payment by the employer is not required by state law, the cost of the test cannot reduce the employee’s minimum wage below the higher of the federal or applicable state minimum wage. Further, if the testing is in connection with a reasonable accommodation, employers have to pay the cost unless it is an undue hardship. While it will be hard to meet undue hardship with regard to medical conditions, it may be easier to meet the standard with regard to religious objections―except for states like California and New York that define hardship the same or virtually the same for medical and religious, provided that such state laws are not preempted, an issue the ETS does not specifically address. Finally, employers may have to negotiate with unions with regard to requiring that employees pay for the cost of testing. Even if there arguably is no duty to negotiate, it is recommended that employers consult with the union.
Let’s keep in mind employee relations, too. Employers who pass on the cost to employees may lose employees in the “great resignation.” Also, requiring employee payment may provide unions with an organizing issue.
Paying for Testing Time
The ETS is silent on this issue. Does that mean there is negative implication that employers don’t have to pay for the testing and accompanying travel time? No. The Fair Labor Standards Act (FLSA) still applies. According to the Department of Labor, if an employer requires COVID-19 testing during the workday, it is obliged to pay for the time spent undergoing the testing under the FLSA. Various implementation issues need to be considered, for example, when and where such testing takes place.
Responding to Positive Test Results and Diagnosis
Employers must require employees to promptly notify them of positive test results or a COVID-19 diagnosis by a licensed healthcare provider and then immediately exclude such employees from the workplace. In this regard, employers need to make sure their daily screenings cover not only positive tests but also diagnoses by licensed healthcare providers, even in the absence of a positive COVID-19 test.
On the issue of return to work, the ETS is inconsistent with CDC guidance.
More specifically, the ETS permits employers to allow employees to return to the workplace who: (i) receive a negative PCR (NAAT) test result after having received a positive rapid (antigen) test result; (ii) satisfy the CDC’s “Isolation Guidance” standards for returning to work; or (iii) or obtain a return to work recommendation form a licensed healthcare provider. Please note the “or.”
Compare with the CDC website.
In most circumstances, a negative test or doctor’s note is neither necessary nor sufficient. Employers may wish to apply the more stringent CDC guidance because it is not only about legal compliance but also about business continuity as well as helping to save lives.
Face Coverings for Unvaccinated Employees
Employers must ensure that unvaccinated employees wear face coverings fully covering the nose and mouth whenever indoors or in a vehicle for work with another person, except:
- When alone in a fully enclosed room (with floor-to-ceiling walls and a closed door);
- For a limited time to permit the employee to eat or drink or be identified for safety or security reasons;
- If in order to perform job duties where it is important to see the employee’s mouth or for the mouth to be uncovered;
- If using a face covering would subject the employee to a risk of serious injury or death; or
- When the employee is wearing a face mask or respirator.
The ETS specifies the required composition, fit and design for face coverings.
Exemptions and Accommodations
The ETS recognizes that mandatory vaccination policies must exempt employees who are legally entitled to an accommodation under federal civil rights laws based upon a disability or sincerely held religious belief. It also provides exemptions based on medical reasons, even for employees who are not disabled or entitled to an accommodation under federal law, but for whom: (i) a vaccine is contraindicated or (ii) a delay in vaccination is required due to medical necessity. The medical exemption also would cover medical conditions associated with pregnancy. The face covering requirement for unvaccinated employees is also explicitly subject to the duty to accommodate. The ETS refers employers to the EEOC’s regulations, guidance and technical assistance for addressing accommodations issues.
Reporting and Record Availability
Employers are required to report COVID-19 work-related deaths to OSHA within eight hours of learning of the fatality and COVID-19 work-related hospitalizations within 24 hours of learning of the hospitalizations. In the event of a request by an employee or employee representative, employers must provide by the end of the following business day the total number of employees and total number of vaccinated employees at a workplace. Upon OSHA’s request, employers must provide this information within four hours, as well as its written policy required by the ETS. All other records and documents required under the ETS must be provided to OSHA by the end of the business day after they are requested.
States with OSHA Approved Plans
States with OSHA approved safety programs, such as California, Virginia and Michigan, will have 30 days to adopt the ETS or draft a rule that is at least as protective.
Under OSHA’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, OSHA provides for vaccinated workers to wear face masks in public areas in all workplaces located in counties with substantial or high COVID-19 community transmission. The vast majority of counties still meet this criteria. The ETS does not address this issue, but employers are well advised to follow the guidance on this and other issues not expressly covered by the ETS, for example, steps to improve ventilation.
Employers also are reminded to comply with the OSHA guidance in general as well as state and local mask mandates, too, regardless of whether the ETS survives.
Under current law, penalties for OSHA violations are substantial. Each OSHA violation potentially subjects the employer to a penalty of up to $13,653 and a penalty of up to $136,532 for willful or repeat violations. Under proposed H.R. 5376 (September 27, 2021), the penalties may be higher: $700,000 per violation. Beyond OSHA penalties, plaintiffs’ lawyers may argue that the failure to comply with the ETS is evidence of negligence in a claim where a nonemployee alleges they contracted COVID-19 from an employee. It also may be used by an attorney to try to circumvent the workers’ compensation bar if an employee contracts COVID-19 from a co-worker.
What This Means for Employers
Employers should promptly determine whether they are covered by the ETS. Covered employers should begin preparing a written policy and develop their approach for determining and documenting employee vaccination status. In order to prepare the policy, employers must decide whether they will require vaccination or permit the employees to elect to be tested instead―or a hybrid approach that requires some groups of employees to be vaccinated but gives others the option to choose testing. While permitting employees to elect testing rather than vaccination may increase employee retention, implementing that option imposes additional burdens on the employer that can be significant. Accordingly, determining employee vaccination status, if not already known, is a practical place to start. The approach that will be adopted and how it will be implemented should promptly be communicated to employees, along with the timetable for vaccination and/or testing. Since the masking requirement for unvaccinated employees is effective December 5, employers must determine vaccination status in advance of that date.
This Alert does not describe all of the requirements under the ETS, and employers should work with counsel to develop their policies and approach for complying with the ETS and accommodation obligations under applicable law.
About Duane Morris Institute
The Duane Morris Institute will be hosting a free webinar on November 10 to review how employers should approach compliance with the new OSHA ETS. We also will discuss the interplay between the ETS and vaccine mandates under Executive Order 14042, CMS and state laws. The program will end with practical implementation issues applicable to vaccine policies.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, Jonathan D. Wetchler, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.