OSHA ETS UPDATE
On January 13, 2022, the Supreme Court reinstituted the stay on the OSHA ETS vaccination/testing mandate for employers over 100. The stay means that OSHA can’t enforce the ETS, and businesses do not need to comply with the vaccination or testing mandates outlined in the ETS. Within the ruling, the unnamed majority stated that the Occupational Safety and Health Act empowers the Secretary of Labor to set workplace safety standards, not broad public health measures. Based on the Court’s comments, OSHA will likely not fight this and will go back and rethink the ETS.
In its fall 2021 regulatory agenda, OSHA announced that it is targeting April for a permanent airborne infectious disease standard. Whether the standard will apply just to healthcare workers or all industries is unknown at this point. The 22 states with their own State Plans safety plans, such as Washington, could institute their version of the ETS, but right now, there is no indication they will do so.
Employers are free to continue implementing a vaccine and/or testing required if state law does not prohibit it.
On Thursday, November 4, the Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS) that outlines a vaccine and testing mandate for private employers that have 100 or more employees. While the ETS technically went into effect on Friday, November 5, employers have until December 6 to comply with most requirements and January 4, 2022, for weekly testing.
How are 100 Employees Calculated?
Employees Located at Different Offices
The count includes employees across the entire company in the U.S. regardless of the location of their employment. For example, an employer with 60 employees in Seattle and 40 employees in Portland would be subject to the V&T ETS as it has 100 employees at the corporate level. The count includes both full-time and part-time employees. If an employer has 20 full-time employees and 80 part-time employees, they would be subject to the V&T ETS.
Employees who work at a multi-employer worksite, such as a construction site, are only counted toward the company that directly employs them. While a particular construction site may have over 100 workers, if all but one of the companies involved have less than 100 employees at the corporate level, only the company at the site that employs 100 employees overall construction sites and offices would be subject to the V&T ETS requirements.
Employees who work off-site, exclusively outdoors, mainly in customers’ homes, or otherwise work remotely are still included in the count to determine whether an employer is subject to the V&T ETS requirements. Independent contractors do not count in the total number of employees.
However, a staffing agency that supplies temporary workers would be included in the agency’s count but not the host employer’s count.
How Long must my company comply with the V&T ETS?
Once the company meets the employee threshold, the V&T ETS will apply to your company regardless of future employee fluctuations. If at any point a company hits the 100 simultaneous employees company-wide, they are subject to the V&T ETS for as long as the ETS remains in effect.
Which Private Employers are Not Subject to the V&T ETS?
If your business has less than 100 full and part-time employees, your business is not subject to the V&T ETS until you hit the 100 employee mark at any point while the ETS is active. The V&T ETS also does not apply to employers subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or the Healthcare ETS (29 CFR 1910.502) that covers healthcare services and healthcare support services.
Create Policy – Employers are required to develop, implement, and enforce a mandatory COVID-19 policy vaccination policy or undergo weekly testing and wear a face covering at the workplace. Any employee who is not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
Provide Information – Employers must provide each employee with information about the requirements of the ETS, including:
- Workplace policies and procedures implementing the ETS
- Vaccine efficacy, safety, and the benefits of being vaccinated by providing the CDC document “Key Things to Know About COVID-19 Vaccines“)
- That employees are protected against retaliation and discrimination
- The law provides for criminal penalties for knowingly supplying false statements or documentation.
The last requirement on criminal penalties is essential to convey to your employees, so they fully understand the consequences of supplying false information, such as a fake vaccination card or otherwise lying about vaccination status. The penalty is a fine of not more than $10,000, imprisonment of up to 6 months, or both.
Determine Vaccination Status – Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination status of vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
Provide Time to Obtain Vaccine and Recover from Side Effects – Employers must also provide employees reasonable time, including up to 4 hours of paid time, to receive each primary vaccination dose and a reasonable amount of time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. The 4 hours of paid time to receive each vaccine dose cannot be offset by any other leave that an employee has accrued, such as sick leave.
If an employee decides to receive a vaccination dose outside of work hours, such as the weekend, employers are not required to grant paid time for the time spent receiving the vaccine during non-work hours. However, the employee still needs to be provided leave to recover from side effects. If an employee has accrued paid sick leave (or general paid time off if vacation and sick leave are pooled together), the employer can require that the employee use paid sick leave or PTO when recovering from side effects experienced following a vaccination dose. Employees cannot be required to borrow against future sick leave and accrue negative sick leave if they need to recover from any vaccine side effects.
Notification of Positive Tests or Diagnosis & Response – An employer’s vaccination policy must also require employees to promptly notify their employer when they receive a positive COVID-19 test or are diagnosed with COVID-19. Employers must immediately remove an employee with a positive COVID-19 test or diagnosis from the workplace regardless of vaccination status. The employee must be kept out of the workplace until they meet specific criteria. Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and within 24 hours for work-related COVID-19 in-patient hospitalization.
Return to Work Criteria After COVID-19 – If an employee receives a positive COVID-19 test or diagnosis by a licensed healthcare provider, the employee must be removed from the workplace and remain removed 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 CDC’s Isolation Guidance; or
- Receives a recommendation to return to work from a licensed healthcare provider.
Employees that are not fully vaccinated, whether by choice or a religious or disability accommodation, must be tested for COVID-19 at least once a week if they work in the office or public-facing space.
Remote employees who are not fully vaccinated do not need a weekly test. Employees that primarily work from home or away from the workplace for more than a week must take a test within 7 days before returning to the workplace.
Even if an employee who is unvaccinated or not fully vaccinated wears a face covering and is isolated while on the worksite, they still need to be tested before coming into the workplace. Employers must also maintain a copy of each COVID-19 test result for each not fully vaccinated employee.
Employers are not required to pay any costs associated with testing employees under V&T ETS. However, your business may be subject to such a requirement by other laws, regulations, or collective bargaining agreements. Employers are free to pay for testing their employees that are not fully vaccinated if they so choose.
Weekly testing for not fully vaccinated employees must continue until the V&T ETS is no longer in effect.
What Tests are Acceptable?
Under the Vaccine and Testing ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:
- Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
- Administered per the authorized instructions; and
- Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
According to OSHA, examples of tests that satisfy this requirement include:
- Tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens)
- Proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.
Antibody tests do not meet the definition of COVID-19 tests for the V&T ETS.
Most requirements of the V&T ETS must be complied with by December 6, 2021. However, testing unvaccinated and not fully vaccinated employees isn’t required until January 4, 2022. The following is a table provided by OSHA laying out specific requirements and the dates employers must comply with each requirement by:
|Requirement||December 6, 2021||January 4, 2022|
|Establish policy on vaccination||X|
|Provide support for employee vaccination||X|
|Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis||X|
|Remove any employee who received positive COVID-19 test or COVID-19 diagnosis||X|
|Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes||X|
|Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation||X|
|Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours||X|
|Make certain records available||X|
|Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer)||X|
Speak with an attorney about drafting your COVID-19 Policies, and any other questions you have about ETS, by contacting us at 425-250-0205 or firstname.lastname@example.org.
Legal Disclaimer: This article contains general information and should not be viewed as legal advice. You should talk with counsel familiar with your unique business needs before taking or refraining from any action.