By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.

On November 4, 2021, the Occupational Safety & Health Administration (“OSHA”) announced an emergency temporary standard (“ETS”) establishing new minimum COVID-19 vaccination, vaccination verification, face covering and testing mandates for more than 84 million workers. This ETS comes nearly two months after President Biden ordered its promulgation.

[UPDATE: On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an ORDER staying the ETS pending further action by the Court].

WHICH EMPLOYERS ARE COVERED BY THE MANDATES?

The mandates cover all employers with 100 or more employees. In this regard, the determination of whether an employer is covered by the ETS is separate from the determination of whether its employees are subject to the mandates.

The mandates do not, however, apply to:

1. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
2. Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of Section 1910.502.

WHICH EMPLOYEES OF COVERED EMPLOYERS ARE NOT SUBJECT TO THE MANDATES?

The mandates do not apply to employees of covered employers:  

1. Who do not report to a workplace where other individuals such as coworkers or customers are present;
2. While working away from home; or
3. Who work exclusively outdoors.

WHAT IS REQUIRED OF COVERED EMPLOYERS AS TO EMPLOYEES SUBJECT TO THE MANDATES?

The ETS includes fourteen requirements: 

1. Employer Policy on Vaccination. The employer must establish, implement, and enforce a written mandatory vaccination policy. An employer is exempted from this requirement only if it establishes, implements, and enforces a written policy allowing an employee, as an alternative to mandatory vaccination, to (a) provide proof of weekly testing for COVID-19, and (b) wear a face covering. The ETS recognizes that a written mandatory vaccination policy need not require vaccinations of employees (a) for whom a vaccine is medically contraindicated; (b) for whom medical necessity requires a delay in vaccination; or (c) who are legally entitled to a reasonable accommodation because they have a disability or a sincerely held religious belief.  
2. Determination of Vaccination Status. The employer must require each employee to provide acceptable proof of vaccination status, including whether the employee is fully or partially vaccinated. Acceptable proof of vaccination status is (a) the record of immunization from a health care provider or pharmacy; (b) a copy of the COVID-19 Vaccination Record Card; (c) a copy of medical records documenting the vaccination; (d) a copy of immunization records from a public health, state or tribal immunization information system; (e) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s); or (f), a signed and dated statement by the employee (i) attesting to their vaccination status; (ii) attesting that they have lost and are otherwise unable to provide proof; and (iii) a specific attestation subject to criminal penalties. Any employee who does not have one of the acceptable forms of proof of vaccination status must be treated as not fully vaccinated.
3. Record of Vaccination Status. The employer must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. 
4. Support for Employee Vaccination. As to previously unvaccinated employees, the employer must provide (a) a reasonable amount of time to each employee for each of their primary vaccination dose(s); (b) up to four hours paid time, including travel time, at the employee’s regular rate of pay for this purpose; and (c) reasonable and paid sick leave to recover from side effects experience following any primary vaccination dose.
5. COVID-19 Testing For Unvaccinated Employees. For employees who are not fully vaccinated, the employer must ensure the employees (a) are tested for COVID-19 at least once every 7 days, or if away from work for 7 or more days, prior to returning to the workplace; and (b) provide documentation of the most recent COVID-19 Test result within 7 days or prior to returning to the workplace. A COVID-19 Test must be (a) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA) by the FDA to detect current infection with the COVID-19 virus (e.g. a viral test); (b) administered in accordance with authorized instructions; and (c) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. There is no requirement in the ETS that the employer pay for COVID-19 testing, but such a requirement may be imposed by other laws.
6. Removal of Employee Without Testing Documentation. If an employee does not provide the necessary COVID-19 testing documentation, the employee must be removed from the workplace.
7. Records of COVID-19 Tests. The employer must maintain a record of each COVID-19 test result of an employee. These records are considered to be employee medical records, and must be maintained and preserved while the ETS is in effect.
8. Employee Notification of Positive COVID-19 Test. The employer must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed health care provider. When an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.
9. Removal of Employee With Positive COVID-19 Test. The employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee (a) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; (b) meets the return to work criteria in CDC’s “Isolation Guidance”; or (c) receives a recommendation to return to work from a licensed healthcare provider. There is no requirement that an employee be paid for time off from work due to COVID-19, but such a requirement may be imposed by other laws.
10. Face Coverings for Unvaccinated Employees. The employer must ensure that each employee who is not fully vaccinated wears a face covering over the nose and mouth when indoors and when occupying a vehicle with another person for work purposes, except: (a) when an employee is alone in a room with floor to ceiling walls and a closed door; (b) while the employee is eating or drinking at the workplace; (c) for identification purposes in compliance with safety or security requirements; (d) when the employee is wearing a respirator or face mask; or (e) when the employee can show that the use of face coverings is infeasible or creates a greater hazard. There is no requirement that an employer pay for face coverings, but such a requirement may be imposed by other laws.
11. Required Disclosures to Employees. The employer must inform each employee about (a) the requirements of the ETS as well as any employer policies and procedures established to implement these requirements; (b) the document “Key Things to Know About COVD-19 Vaccines”, published by the CDC; (c) the prohibition from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness; and (d) the prohibitions of the OSH Act providing criminal penalties for those who knowingly supply false statements or documents.
12. Work-Related COVID-19 Fatalities and Hospitalizations. The employer must report to OSHA (a) each work-related COVID-19 fatality within 8 hours of learning about the fatality; and (b) each work-related COVID-19 hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
13. Availability of Records to Employee or Employee Representative. The employer must provide, upon request, (a) an employee’s COVID-19 documentation to the employee or anyone having the written authorized consent of the employee by the end of the next business day following the request; (b) the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace to an employee or employee representative by the end of the next business day following the request.
14. Availability of Records to OSHA. The employer must also provide, upon request by OSHA, (a) the employer’s written COVID-19 policy, and aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace, within 4 business hours of a request; and (b) all other COVID-19 records required by the emergency temporary standard by the end of the next business day following the request.         

WHEN ARE THE MANDATES EFFECTIVE?

Covered employers must comply with all requirements of the ETS except COVID-19 testing by December 5, 2021. In preparation for this deadline, covered employers should immediately begin formulating written mandatory vaccine policies.

Covered employers must comply fully with all provisions of the ETS by January 4, 2022.

DOES THE ETS PREEMPT CONFLICTING STATE AND LOCAL LAWS?

The ETS preempts any conflicting state or local laws as to vaccination, COVID-19 testing or face coverings. The ETS does not, however, preempt state and local laws for employers with less than 100 employees.

IS OSHA’S GENERAL DUTY CLAUSE STILL APPLICABLE TO COVID-19 IN THE WORKPLACE?

OSHA’s general duty clause requires that all employers provide employees a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The ETS was promulgated, in part, because OSHA’s general duty clause was deemed inadequate for combating COVID-19 in the workplace. Still, there may be situations in which the ETS does not apply and the general duty clause will provide the only basis for an OSHA citation.

WHAT PENALTIES DOES A COVERED EMPLOYER RISK BY VIOLATING THE MANDATES?

As of January 15, 2021, the maximum OSHA penalties are $13,653 for Serious, Other-Than-Serious, Posting, and Failure to Abate violations, and $136,532, for Willful and Repeat violations.

HOW WILL OSHA ENFORCE THE MANDATES?

On March 12, 2021, OSHA launched a National Emphasis Program for the inspections of companies that put the largest number of workers at serious risk of contracting COVID-19. Covered employers which are a part of this National Emphasis Program should anticipate inspections as part of enforcement of the ETS. Other employers should expect either inspections or audits of documentation required by the ETS.

WILL THE MANDATES WITHSTAND A LEGAL CHALLENGE?

There are at least three potential grounds for setting aside the mandates. First, an ETS is not subject to the same procedures as other OSHA standards and thus requires a showing of “grave danger” to employees. This “grave danger” threshold may be more difficult to meet come January 4, 2022.

Second, OSHA is charged with providing employees with a safe workplace, not enforcing pay regulations. The provision of the ETS providing paid time off may not withstand judicial scrutiny.

Third, the efficacy of the ETS will be subject to many questions. Is weekly COVID-19 testing a viable alternative to vaccination? Why does the ETS cover only larger employers, and not smaller employers with less than 100 employees?

Time will tell whether any legal challenges to the mandates ares successful.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.