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Editor's note: The federal Occupational Safety and Health Administration (OSHA) can now implement and enforce its “Vaccination or Test” Emergency Temporary Standard (ETS) despite the appeal to the U.S. Supreme Court.

The U.S. Court of Appeals for the 6th Circuit on December 17, 2021, dissolved the stay issued by an earlier court decision against OSHA’s enforcement of the ETS.

Several of the key implementation deadlines set forth in the ETS have already passed. In that regard, OSHA states on its website:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

The plaintiffs in the litigation appealed the decision to the U.S. Supreme Court who has agreed to hear oral arguments in the case during a special session on January 7, 2022. The Court will address only whether the vaccination mandate should be preliminarily enjoined pending further litigation in the lower courts. Since the Court accepted this appeal on an emergency basis, a decision is expected to be issued relatively soon.

In the interim, employers covered by the mandate should promptly resume taking steps to comply with the mandate.

If you have questions about the ETS or what steps to take next, please contact Charles R. Bacharach at cbacharach@gfrlaw.com.

OSHA issued on November 4, 2021, an Emergency Temporary Standard (ETS) containing its long-anticipated vaccination rule for employers with 100 or more employees.

Employers have been awaiting the ETS since September 9, 2021, when President Joseph R. Biden, Jr. announced the “Path Out of the Pandemic,” an array of initiatives to combat COVID-19. Among the initiatives is a package of four vaccination programs aimed at different segments of the workforce: employees of federal agencies, employees of federal contractors, employers with 100 or more employees, and workers at health facilities that receive federal Medicare and Medicaid funds.

The vaccination programs covering federal agency employees and employees of federal contractors were issued in October. Both programs mandate that all covered employees be vaccinated subject only to exceptions for employees who require an accommodation due to a disability under the Americans with Disabilities Act (ADA), or a sincerely held religious belief under Title VII of the Civil Rights Act of 1964. There is no testing option under these programs.

The health care staff vaccination rule for employees of Medicare/Medicaid recipients also was issued November 4.

OSHA states that “workers are continually becoming seriously ill and dying as a result of occupational exposures to COVID-19” and that it “conservatively estimated that the ETS will prevent over 6,500 deaths and over 250,000 hospitalizations.” OSHA believes that the ETS will apply to two-thirds of all private-sector workers in the nation.

The ETS is widely expected to face significant legal challenges. Attorneys general in several states have indicated that they plan to file suit to block implementation of the ETS.

Following are questions and answers about the ETS:

Q: What is an ETS?

A: OSHA’s decision to issue the vaccination rule as an ETS is a rarely used process. Prior to an ETS issued in June prescribing workplace COVID-19 safety procedures for a limited range of health care entities, OSHA had not issued an ETS since 1986.

An ETS may be effective for up to six months, after which it must be replaced by a permanent standard.

Permanent OSHA standards are subject to undergo a formal rulemaking process involving a typical notice-and-comment period, during which employers and other stakeholders can provide their feedback.

By contrast, the federal employee and federal contractor mandates were issued pursuant to an executive order and will remain in place until revoked by President Biden or a future administration.

Q: What type of employer vaccination policy does the ETS require?

A: Employers covered by the ETS must establish and implement a written policy that mandates either all covered employees be fully vaccinated, or all covered employees choose between being fully vaccinated or providing proof of regular testing for COVID-19 and wearing a face covering in the workplace.

Q: When does the vaccination requirement go into effect?

A: The ETS is effective immediately. The deadline to comply with all ETS requirements, except establishing the testing program for employees who are not fully vaccinated, is December 5, 2021. OSHA provided a longer, 60-day period, until January 4, 2022, to establish a weekly testing program.

Q: Which employers are subject to the ETS?

A: All employers with a company-wide total of 100 or more employees while the ETS is in effect are covered. All employees — full and part time, remote and on-site, temporary and seasonal — count toward the total although remote employees and those assigned to work exclusively outside are not subject to all of the ETS requirements. (See below).

The ETS applies for the duration of the standard if the employer has 100 or more employees on the effective date. If the employer has fewer than 100 employees on the effective date, but subsequently hits the 100-employee threshold, then the employer would be expected to comply with the standard’s requirements and remain in compliance for the rest of the time the ETS is in effect — regardless of later fluctuations in the size of the employer’s workforce.

OSHA states that independent contractors do not count toward the total number of employees.

Q: Are any workplaces exempted?

A: Workplaces covered by the federal contractor mandate and settings where any employee provides health care services or health care support services subject to the ETS for health care entities issued in June 2021 are not subject to OSHA’s ETS issued November 4.

Q: Are any employees exempted?

A: The ETS does not apply to employees of covered employers:

• Who do not report to a workplace where other individuals, such as coworkers or customers, are present;
• While working from home; and
• Who work exclusively outdoors.

Q: How does a covered employer determine employee vaccination status?

A: The ETS requires employers to determine the vaccination status of each employee, including whether they are fully or partially vaccinated. Acceptable proof of vaccination status is:

• The record of immunization from a health care provider or pharmacy;
• A copy of the COVID-19 Vaccination Record Card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state or tribal immunization information system; or
• 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).

If an employee is unable to produce acceptable proof of vaccination, the employee may submit a statement signed and dated by the employee attesting to their vaccination status and that they have lost and are unable to produce proof of their vaccination, and a declaration, as specified in the ETS and subject to criminal penalties, that their statement is true.

Any employee who does not provide sufficient proof of vaccination status must be treated as unvaccinated.

If an employer had ascertained an employee’s vaccination status prior to the issuance of the ETS, retained a record of the proof submitted by the employee and determined that the employee was fully vaccinated, the employer need not go through the process again. The employer’s existing records will constitute acceptable proof of vaccination.

Q: What records do covered employers have to keep?

A: The ETS requires employers to maintain a record of each employee’s vaccination status and to preserve acceptable proof of vaccination for each fully or partially vaccinated employee. Employers must also maintain a roster of all employees that clearly indicates for each one whether they are fully or partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.

Employers that implement a policy allowing employees to regularly test for COVID rather than be vaccinated must also maintain a record of each test result.

The records of employee vaccination, the roster and all test results are considered to be employee medical records under the Occupational Safety and Health Act of 1970 (OSH Act) and the ADA, and must be treated as confidential and kept in a secure location, separate from personnel files.

Employers must make the individual COVID-19 vaccine documentation for a particular employee available for examination and copying to that employee or to anyone having the written authorized consent of that employee. Once requested, the documents must be produced by the end of the next business day. In addition, the ETS provides that by the end of the next business day after a request is made, the employer must make the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace available to the requestor.

An employer’s written policy and aggregate numbers are also subject to inspection by OSHA on four hours’ notice, and the remaining records required by the ETS must be made available to the agency by the next business day after a request.

Records kept pursuant to the ETS are not subject to OSHA’s usual 30-year retention requirement; however, all required records must be maintained while the ETS is in effect.

Q: Will employers have to provide any exceptions to a mandatory vaccination policy?

A: Employers will have to provide the following exceptions to vaccination requirements to employees:

• For whom a vaccine is medically contraindicated,
• For whom medical necessity requires a delay in vaccination, or
• Who object to vaccination based on a disability or because of a sincerely held religious belief.

Such employees may be entitled to a reasonable accommodation.

The Equal Employment Opportunity Commission previously provided extensive guidance on providing reasonable accommodations from vaccination requirements under the ADA and Title VII.

Q: Are employees entitled to paid time off to be vaccinated and/or to recover from vaccination?

A: Employers must provide at least four hours of paid time, including travel time, at the employee’s regular rate of pay for the employee to get each of their primary vaccination dose(s). The required paid leave cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. The pay requirement applies only to time taken to obtain a vaccination during work hours. This paid leave benefit should be described in the employer’s written policy.

The time necessary to get the vaccine is protected under the ETS even if an employee requires time in addition to the mandated four hours so long as it is a “reasonable” amount of time.

Employers must also provide “reasonable time and paid sick leave” to recover from any side effects experienced following any primary vaccination dose. The ETS does not require any specific amount of paid sick leave — just that it be a reasonable amount of time. A model policy supplied by OSHA states that “[e]mployees who have no sick leave will be granted up to two days of additional sick leave immediately following each dose if necessary,” so, presumably, providing at least two days of paid leave would be considered reasonable.

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave (or paid time off that can be used for sick leave) when recovering from any side effects following any primary vaccination dose. However, employers cannot require an employee to use vacation leave if the employer differentiates between sick and vacation leave. Employers also may not require employees to accrue negative paid sick leave or borrow against future paid sick leave.

Q: What are the requirements for a testing program?

A: Employers may opt to have a policy that allows employees who do not wish to be vaccinated to undergo regular COVID-19 testing. In that case, the employer must ensure that any employee who is not fully vaccinated is tested in accordance with the ETS.

Employees who report at least once every seven days to a workplace where other individuals, such as coworkers or customers, are present must:

• Be tested for COVID-19 at least once every seven days and
• Provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date on which the employee last provided a test result.

Employees who do not report to a workplace where other individuals, such as coworkers or customers, are present for seven or more days must:

• Be tested for COVID-19 within seven days prior to returning to the workplace and
• Provide documentation of that test result to the employer upon return to the workplace.

For purposes of the ETS, an acceptable COVID-19 test has been cleared, approved or authorized (including pursuant to an emergency use authorization) and administered in accordance with the authorized instructions. Acceptable tests do not include self-administered and self-read tests unless observed by the employer or an authorized telehealth proctor.

The ETS does not require employers to pay for any costs associated with testing although they may voluntarily do so. Employer payment for testing, however, may be required by other laws, regulations or collective bargaining agreements. In particular, although it is not explicitly stated in the ETS, most commentators believe that employers will have to pay for testing for employees entitled to an exception from the vaccine requirement based on a disability or a religious belief.

Employees who fail to provide documentation of a required COVID-19 test result must be removed from the workplace until the employee provides a test result.

Q: What are the employee and employer obligations when the diagnosis and test results are positive?

A: An employer’s written policy implementing the ETS must require employees to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19. The employer must immediately remove such employees from the workplace until the employee:

• Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing,
• Meets the return-to-work criteria in the federal Centers for Disease Control and Prevention’s (CDC) "Isolation Guidance" or
• Receives a recommendation to return to work from a licensed health care provider.

The ETS does not require employers to provide paid leave time to any employee removed from the workplace because of a positive COVID-19 test or COVID-19 diagnosis. Paid time may be required by other laws, including the Maryland Healthy Working Families Act (Sick and Safe Leave).

Employees who test positive for COVID-19 or are diagnosed as having COVID-19 by a health care provider must be exempt from the testing requirement for the 90-day period following the positive test or diagnosis.

Q: What are the face-covering requirements for employees who are not fully vaccinated?

A: Employers must ensure that each employee not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except:

• When an employee is alone in a room with floor-to-ceiling walls and a closed door,
• For a limited time while the employee is eating or drinking at the workplace or for identification purposes,
• When an employee is wearing a respirator or face mask, or
• Where the employer can show that the use of face coverings is infeasible or creates a hazard in the workplace.

In addition, if an employee cannot wear a face covering because of a disability or a sincerely held religious belief, the employee may be entitled to a reasonable accommodation.

Face coverings required by the ETS must be:

• Worn by the employee to fully cover the employee’s nose and mouth; and
• Replaced when wet, soiled or damaged (e.g., is ripped, has holes or has broken ear loops).

Except where it might create a risk of serious injury or death, such as interfering with the safe operation of equipment, an employer may not prevent any employee from voluntarily wearing a face covering and may not prohibit customers or visitors from wearing face coverings.

The ETS does not require employers to pay for or provide face coverings, but employers may voluntarily provide coverings.

Q: What information must employers provide to employees?

A: Employers must provide employees with the following categories of information:

• The ETS requirements through the employer’s written policy implementing the ETS;
• A copy of the CDC’s document Key Things to Know About COVID-19 Vaccines;
• A statement (which can also be included in the written policy) informing the employees about the occupational safety and health laws that prohibit an employer from discharging, discriminating or retaliating against any employee exercising rights under those laws; and
• The section of the OSH Act that provides for criminal penalties associated with knowingly supplying false statements or documentation.

Q: Do employers have to report COVID-19 cases?

A: Employers do not have to report all COVID-19 cases; however, they must report work-related COVID-19 fatalities to OSHA within eight hours of learning about the fatality, and work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.

Whether an employee’s COVID-19 illness is work-related is to be determined under OSHA’s existing regulations for determining work-relatedness. That will be a difficult determination in many cases, because employees typically experience potential exposure to COVID in and out of the workplace. In the event of an employee’s COVID-related hospitalization or death, it would be advisable to consult with counsel.

Q: Will there also be state workplace vaccine requirements?

A: Twenty-two states, including Maryland, have their own occupational safety and health agencies. Those states have 30 days to either adopt OSHA’s ETS or develop their own plan, which must be at least as effective as the ETS.

Q: If a state law conflicts with the ETS, which one stands?

A: Some states have enacted or plan to enact laws that prohibit or limit various aspects of employer vaccination, testing and face-covering requirements. The ETS makes clear that it preempts inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering or testing.

Next Steps for Employers

All employers subject to the ETS must develop and implement a written policy setting forth the ETS requirements. In addition, employers will need to determine each employee’s vaccination status and create polices governing time off to get vaccinated and for sick time from the possible side effects of vaccination. Employers will also have to determine how they will track testing, if testing is offered as an alternative, as well as how they will track testing for employees who test as an accommodation because of a disability or religious belief. Complying with the ETS and introducing the vaccine, testing and face-covering requirements in the workplace may present difficult challenges for employers.

If you want to discuss the ETS and how best to implement it at your business, please contact Charles R. Bacharach or James D. Handley.

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content.

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

James D. Handley
410-576-4201 • jhandley@gfrlaw.com

Editor's note: This article was updated January 5, 2022, with information about the appeal to the U.S. Supreme Court.