As you have likely heard by now, all employers covered by OSHA who have 100 more employees must comply with its COVID-19 Vaccine Testing Emergency Testing Temporary Standard (ETS). Well, more accurately stated, they may have to comply. We are writing this blog to give you a general overview of the ETS requirements and to let you know where things stand on required compliance. During our webinar on Friday, November 19, 2021, from noon to 1 PM ET, we will provide you with a more detailed analysis of the ETS, as well as an update on where things stand at that time. Click here to register.
What is the Status of the ETS?
In plain language, several different groups have filed motions in different appeals courts asking them to “stay” or put the implementation of the ETS on hold. There are various legal theories as to why the ETS should not be enforced, but the bottom line right now is that as of the time of this writing, at least one federal appeals court (the Fifth Circuit) has issued an order that temporarily stops the ETS from taking effect due to “grave statutory and constitutional” concerns about its legality.
Federal rules dealing with similar litigation that’s been filed in several federal appeals courts require that the cases challenging the rule be consolidated and heard by one of those appeals courts, which will be chosen by a lottery. That lottery has not yet been conducted, so we do not yet know what court appeals court will make the decision. By the time of our webinar next week, we expect to have more information on where the ETS stands.
What Employers will be Covered?
The ETS applies to all OSHA-covered employers who have 100 or more employees—regardless of status and location. The ETS does not cover those employers who are subject to other similar vaccine mandates, such as the Federal Contractor Mandates or federal mandates that specifically apply to healthcare settings. In some states (not Massachusetts), the state, rather than the federal government, has jurisdiction over workplace safety, and those states will need to adopt the ETS or put other measures in place that will be just as effective as the ETS.
Face Coverings
Assuming the stay is lifted, the ETS requires that beginning on December 6, 2021, employers must ensure that all employees who are not fully vaccinated wear face coverings when indoors and when occupying a vehicle with another person for work purposes, except in limited circumstances. When an employee is alone in an office (or other room as long as there is floor-to-ceiling walls and a closed door) the employee is not required to wear a face covering.
Employees can also briefly remove their face coverings when eating, drinking, or for identification purposes. If the employee is wearing a respirator, the employee does not need also need a face covering. Face coverings are also not required when the use of face coverings is infeasible or creates a hazard that would excuse compliance, which would be the employer’s burden to prove.
Importantly, what many of us may have considered as an adequate face covering may not be consistent with what will be required. Face coverings must be made with two or more layers of fabric that do not let light pass through when held up to a light source. If an employee wears a gaiter, it must have two layers or be folded over into two layers. This may be a change for some employees who wore “homemade” single-layer face coverings.
Determination of Employee Vaccination Status
Under the ETS (currently on hold), employers must require employees to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. Acceptable proof would include a copy of the COVID-19 vaccination card, medical records documenting the vaccine or immunization records from the appropriate health official, or any other official documentation that includes certain, specific information.
If employees can’t produce acceptable proof of vaccination status, they might be able to provide an attestation that they have been partially or fully vaccinated, attesting that they are unable to produce proof and an acknowledgment that they are subject to criminal penalties if they provide false information. During our webinar, we will discuss best practices and discuss what employers can do when an employee provides false information about the ability to produce a vaccination card and/or vaccination status.
Mandatory Testing
Employees who are not vaccinated, regardless of the reason(s) why, must be tested for COVID-19 at least once every 7 days and must provide documentation to his or her employer no later than 7 days after the last result was provided to the employer. There are some exceptions for employees who only work outdoors and those who work remotely. Also, in some cases, employers do not have to bear the burden of the costs of testing—but not in all cases. We will go over the rules about those exceptions and the costs of testing during our webinar.
Written Policy
Many employers have already established some form of vaccination policy. For those who have done so, it’s likely that their policies will need to be updated to include all the information that the ETS will require them to include. Those who do not have a policy on vaccinations will need to start from scratch.
While OSHA has articulated what must be in the policy, employers will need to make many individualized decisions such as how to collect evidence of vaccination and tests. The policy requirement, which was set to go into effect on December 6, 2021, is also on hold. Nevertheless, we recommend that employers start thinking about how they will handle the vaccination and testing requirements, as well as requests for reasonable accommodations based on medical conditions, disabilities and/or religion.
Paid Time Off to Get Vaccinated
The ETS requires employers to pay employees for the time it takes them to get vaccinated and recover from side effects. It is unclear what, if any, documentation can be requested to corroborate impairing side effects. Covered employers must make this time available to employees by December 6, 2021.
Penalties
Just like other OSHA rules, fines for non-compliance could be almost $14,000 per violation. If OSHA determines that the employer willfully violated the rule, or gets hit with a repeat violation, the fine could go up to a whopping $136,532 per violation.
Open Issues?
The ETS is just short of 500 pages long. Although it’s currently on hold, employers should have a good understanding of what may be required in the near future. Some questions our clients have been asking us include these below, which we will address during our webinar:
- Under what circumstances does an employee have to test while on vacation or leave?
- If an employee’s work can be performed remotely, and they are unable to provide test results within the 7-day period, does an employer have to permit the remote work until the test result is provided?
- What can an employer do when it suspects that an employee has presented a fake vaccination card?
- Do we have to take an employee’s word for it that they are unable to obtain evidence of vaccination?
There are likely to be many more questions as the ETS remains in flux. To provide an update and assist employers with compliance, Skoler Abbott will be presenting a webinar on Friday, November 19, 2021, from noon to 1 PM ET. We hope you will join us.