by Veronica Potter
On November 5, 2021, the Occupational Health and Safety Administration (OSHA) released an Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing requirements for employers. The ETS requires employers with 100 or more employees to either implement a mandatory vaccination policy, or to allow employees to choose between vaccination and weekly testing and wearing a face covering. OSHA has also released an FAQ, webinar, and other resources on the ETS.
The ETS applies to private employers with 100 or more employees across all of the employer’s workplaces or locations. However, it does not apply to employers who are already subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or the OSHA Healthcare ETS. OSHA regulations also do not apply to public employers in Missouri.
The central requirement of the ETS is that employers must either implement a mandatory vaccination policy or a policy allowing employees to choose vaccination or testing. OSHA has provided sample policies for mandatory vaccination and for vaccination or testing and face covering. While OSHA encourages employers to adopt a mandatory vaccination policy, employers are able to choose either option. The requirements for vaccination or testing do not apply to: employees who do not work in a workplace where other individuals, like customers or coworkers, are present; employees who work entirely from home; and employees who work exclusively outdoors.
Under a mandatory vaccination policy, all employees would be required to be fully vaccinated against COVID-19, which means that it has been two weeks since the employee received a primary vaccination, including both doses appropriately spaced if the employee received a two-dose vaccine. Booster shots or additional shots are not required for an employee to be considered fully vaccinated under the ETS, even if the employee is eligible for a booster or additional shot. Employees would not be required to be vaccinated if it is medically contraindicated for the employee, if medical necessity requires a delay in vaccination, or if the employee is entitled to a reasonable accommodation due to a disability or a sincerely held religious belief.
The ETS includes requirements for weekly COVID testing and face coverings for unvaccinated employees. These requirements apply to all unvaccinated employees – whether the employer has opted to give employees the choice between vaccination or testing or if the employer has a mandatory vaccination policy and has employees who are not vaccinated due to medical reasons or because they have received a reasonable accommodation.
Under the ETS, COVID tests must be cleared, approved, or authorized (including under an Emergency Use Authorization) by the Food and Drug Administration to test for current infection with the SARS-CoV-2 virus. (This type of test is often referred to as a diagnostic test, which is different than an antibody test, which shows a previous infection). This includes both rapid antigen tests and PCR tests. Tests must not be both self-administered and self-read unless proctored by the employer or by a telehealth professional. This means that the rapid at home tests available at over the counter at pharmacies will not meet the testing requirements unless the employer oversees the employee conducting the home test.
Unvaccinated employees are required to submit test results every seven (7) days and employers must maintain records of employee test results. Employers are not required to provide testing or pay for testing under the ETS, but employers may choose to do so or may be required to do so under another law or regulation or under a collective bargaining agreement. If an employee tests positive, they are not subject to the testing requirements for 90 days, due to the high potential for false positive results following a positive COVID-19 test, even when the individual is no longer contagious.
Unvaccinated employees must also wear a face covering in most circumstances when around other individuals. There are limited exceptions to remove the face covering for eating or drinking, for security identification, and if wearing the face covering would create a serious danger. The definition of face covering is the same definition that has been used in masking recommendations from the Centers for Disease Control – a face covering does not need to be a medical grade mask and can be purchased or homemade. A face covering must be at least two layers of material that fit snugly over the face with no holes or valves and must be worn over both the mouth and nose. The ETS does not require employers to provide or pay for face coverings, but an employer may choose to do so or may be required to do so under another law or regulation or under a collective bargaining agreement.
The ETS also sets out requirements for all employers with more than 100 employees, regardless of whether the employer chooses a mandatory vaccination policy or a testing and face covering policy. These additional requirements include:
- Determining employee vaccination status – Employers must determine whether their employees are vaccinated and create a roster containing employees’ vaccination status. Acceptable proof of vaccination is provided in the ETS and includes copies of COVID-19 vaccination cards, records of vaccine administration from a pharmacy or medical provider, and records from public health immunization records. If no records are available, an employee may provide an attestation that they were vaccinated. If an employee does not provide proof of vaccination, they must be treated as unvaccinated. Employers must maintain records of employee vaccination status.
- Employer support for employee vaccination – Employers must provide up to four (4) hours of paid time off for an employee to get vaccinated and must provide paid sick leave for an employee to recover from side effects of the vaccination. Employers may require employees to take sick leave to recover from vaccination, if the employee has sick leave available.
- Employee notification of positive COVID-19 test results and removal from the workplace – Employees are required to notify their employer if the employee tests positive for or is diagnosed with COVID-19. These employees must be removed from the workplace and remain out of the workplace until they meet the return to work criteria in the CDC’s guidance or receive clearance from a health care provider. An employee may also return if they receive a negative PCR test result after a positive antigen test result.
- Employers must provide information to employees – Employers must provide employees with information on the requirements of the ETS and the employer’s policies on vaccination and testing, information from the CDC on vaccines, information on prohibitions against retaliating against employees for reporting work-related injury or illness or for filing a complaint with OSHA, and information on the criminal penalties associated with knowingly supplying false statements or documents.
- Employers must report fatalities and hospitalizations to OSHA – Employers must report work-related COVID-19 fatalities of employees to OSHA within eight (8) hours and must report work-related COVID-19 hospitalizations within 24 hours.
- Employers must provide OSHA with information upon request – OSHA may request employer policies, rosters showing vaccine status of employees, employee vaccination records, and employee COVID-19 test result records. Employers are not required to submit any records to OSHA unless OSHA requests the records.
The ETS was published on November 5, 2021, and took effect the same day. However, it faced immediate legal challenges in courts throughout the country and has now been stayed by the Fifth Circuit Court of Appeals. The original implementation deadline under the ETS was December 6, 2021, for all requirements except for weekly testing of unvaccinated employees, and January 4, 2022, for the weekly testing requirement.
While the ETS is stayed by the court, employers are not required to comply. However, given the short implementation window, if possible, employers may want to start reviewing the requirements of the ETS and creating policies and procedures to prepare for potential implementation should the stay be lifted.
If you have questions about how this proposed plan might impact your organization, please contact a Tueth Keeney attorney.
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Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.
Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.