OSHA Issues Emergency Temporary Standard for COVID Vaccines/Testing for Employees (Benefit Minute)

Posted in: Benefit Minute, Employee Benefits

The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) intended to minimize the risk of COVID transmission in the workplace. The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID in the workplace. OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

Grave Danger

According to OSHA, unvaccinated workers are much more likely to contract and transmit COVID in the workplace than vaccinated workers. OSHA has determined that many employees who are not vaccinated face grave danger from exposure to COVID in the workplace. This finding is based on the severe health consequences from exposure to the virus, evidence of transmissibility of the virus in the workplace, and the prevalence of infections in employee populations.

Scope of the ETS

The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction (both white collar and blue collar).  Employers that have a total of 100 or more employees at any time the ETS is in effect are covered.  In determining the number of employees, employers must include all employees across all U.S. workplaces, regardless of employees’ vaccination status or where the work is performed.

The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of a separate healthcare ETS.

States may establish their own state OSHA plans and preempt federal OSHA standards and enforcement. State plans must be “at least as effective” as OSHA’s standards. Currently, 21 states (including Maryland) and Puerto Rico have OSHA-approved state plans that cover all employers in the state, including state and local government entities, and five states and the U.S. Virgin Islands have state plans that cover only state and local and local government employers.  Employers in these states will not be subject to the ETS, but state OSHA plans must adopt an emergency standard that is at least as effective.

States that do not have OSHA-approved state plans may have occupational safety and health laws that cover state and local government entities; however, these laws are not in any way regulated by OSHA, so the vaccine mandate will not apply.

OSHA Requirements

The ETS applies to all employees except those who do not report to a workplace where other individuals such as coworkers or customers are present, those who are working from home, and those who work exclusively outdoors.

The key requirements of the ETS are:

  • Employer policy on vaccination – covered employers must implement a mandatory COVID vaccination policy, OR establish and enforce a policy requiring employees who are not fully vaccinated to undergo weekly COVID testing and wear a face covering at the workplace
  • Determination of vaccination status – for each covered employee, employers must determine the vaccination status of the employee, maintain proof of vaccination, and keep a roster of each employee’s vaccination status
  • Employer support for vaccination – employers must provide employees additional paid leave of up to 4 hours to receive each vaccination dose, and reasonable time and paid leave (may be from existing accrued leave) to recover from side effects experienced following each dose
  • Information provided to employees – employers must provide employees the following: information about the requirements of the ETS and workplace policies established to implement it; the CDC document “Key Things to Know About COVID-19 Vaccines”; information about protections against retaliation and discrimination; and information about laws that provide for criminal penalties for knowingly supplying false documentation
  • Availability of records – employers must make available for examination and copying an employee’s own COVID vaccine documentation and own COVID test results. Employers are also required to make available to an employee the aggregate number of fully vaccinated employees and total number of employees at a workplace

Employers are required to ensure that employees who are not fully vaccinated take a viral test for COVID 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).  Employees are not allowed to self-administer and self-read the test unless observed by the employer or an authorized telehealth provider. The ETS does not require employers to pay any costs associated with testing. However, employer payment for testing may be required by other laws, and an employer may voluntarily pay the costs associated with testing.  Group health plans generally do not cover the cost of COVID testing for general workplace health and safety.   Employers must also ensure that employees who are not fully vaccinated wear face coverings when indoors or when in a vehicle with another person for work purposes, except in limited circumstances.

Reporting

The ETS requires employers to report work-related COVID fatalities to OSHA within 8 hours of learning about them, and work-related COVID in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Effective Date

For federal OSHA, all provisions except weekly testing are effective December 5, 2021 and the mandatory weekly testing requirement becomes effective January 4, 2022.   For state OSHA plans, the deadline can be extended up to 30 days.  In addition, the deadline for employees falling under the federal contractor and the healthcare worker rules has been extended to January 4, 2022 to be consistent with the OSHA ETS.  The ETS remains in effect for up to 6 months, unless made permanent.

Penalties

OSHA may fine a covered employer that does not comply up to $13,653 for each violation of the standard. Willful or repeated violations of the ETS can result in fines of up to $136,532.

Legal Challenges

Numerous legal challenges to the ETS have already been filed in multiple federal jurisdictions.  OSHA is requesting that these be consolidated into a single case.  The U.S Court of Appeals for the Fifth Circuit has already issued a stay of the ETS in one of the cases.  This is a temporary order pending a formal decision on the ETS being reached on the merits.