OSHA Emergency Temporary Standard Mandating COVID-19 Vaccination or Testing for Large Private-Sector Employers Is Issued and Temporarily Stayed

OSHA rarely issues emergency standards, instead publishing non-binding guidance, or promulgating regulations through the traditional regulatory notice-and-comment process. Section 6 of the OSH Act, however, calls for the Secretary of Labor to issue Emergency Temporary Standards that may be in force for up to a six-month period (during which a regular notice-and-comment rulemaking should occur for any permanent standard) upon a finding that:

(i)  workers are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and

(ii) such emergency standard is necessary to protect workers from such danger. 

In publishing the ETS, OSHA cited substantial evidence from peer-reviewed scientific journal articles, government reports, and news articles regarding the prevalence of COVID-19 among employees across industries, and detailing the prevalence of sickness, hospitalization and death among those who contract COVID-19. Based on this evidence, OSHA found that SARS-CoV-2, the virus that causes COVID-19, “is likely to be present in a wide variety of workplaces, placing unvaccinated workers at risk of serious and potentially fatal health effects.” Fully vaccinated workers, however, “are not included in this grave danger finding” because of evidence that the “fully vaccinated are much better protected from the effects of SARS-CoV-2 and, in particular, the most severe effects, than are those who are unvaccinated.” Regarding the necessity of the emergency standard, the Federal Register notice states that approximately 39% of workers covered by the ETS remain unvaccinated and cites the increasing number of states that have adopted measures that prohibit mandatory workplace vaccination policies, “thus attempting to prevent employers from implementing the most efficient and effective method for protecting workers from the hazard of COVID-19.” The ETS notice concludes that “workers are becoming sick and dying unnecessarily as a result of occupational exposures, when there is a simple and effective measure, vaccination, that can largely prevent those deaths and illnesses.” In all, the ETS Federal Register notice includes over 40 pages of scientific and legal authority and explanation for the justification for issuance of the ETS. The ETS is intended to comprehensively address the occupational safety and health issues of vaccination, face coverings, and COVID-19 testing, and to preempt states and localities from limiting employer policies on these measures.

The ETS has the status of a Final Interim Rule, but it does double-duty as a proposed rulemaking for a permanent regulation. OSHA is also soliciting public comments that may inform changes to any permanent standard, such as the feasibility of applying the rule to employers with fewer than 100 employees, whether a permanent rule should adopt safety measures applicable to fully vaccinated persons, whether to include exceptions for workers with antigens from prior COVID-19 infections, and whether to increase the frequency of COVID-19 testing or remove the option to offer testing in lieu of mandatory vaccination.

Beyond the broad outlines of the key provisions of the ETS, the published standard addresses many key employer implementation details.

Who is a covered employer under the ETS?

Covered employers are those with a total of 100 or more employees across all U.S. locations at any time the ETS is in effect. For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold, whether full-time or part-time. Under the ETS, two or more related entities may be regarded as an integrated employer if they handle safety matters as one company, in which case the combined employee count of the related entities determines coverage.

The ETS does not apply, however, to workplaces covered under the current Guidance for Federal Contractors and Subcontractors under Executive Order 14042 (addressed in our September 29, 2021 Client Alert). Therefore, federal contractors that have employees supporting federal contracts in all their business locations will instead have to comply with the stricter standards of EO 14042, which does not provide a testing alternative. Federal contractors with at least 100 employees and that also have workplace locations that exclusively focus on commercial-sector activity, will need to comply with the ETS. OSHA also excludes from coverage workplace settings where employees provide health care services or health care support services because those employees are covered by the requirements of the Healthcare ETS (29 C.F.R. 1910.502). In its Fact Sheet on the ETS, the White House also modified the compliance deadlines for federal contractor COVID-19 vaccination requirements, announcing that “the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS,” with full vaccination of covered contractor employees now required by January 4, 2022, rather than by the original deadline of December 8, 2021.

Which employees are subject to the ETS?

The ETS does not apply to employees of covered employers:

(i)   who do not report to a workplace where other individuals such as coworkers or customers are present;

(ii)  while working from home; or

(iii) who work exclusively outdoors.

Importantly, although these categories of employees would not be subject to the ETS policies, the excluded employees are still counted towards the 100-employee coverage level.

What are the key requirements of the ETS?

The ETS sets out nine requirements for covered employers, addressing: (1) employer policies on vaccination or testing; (2) determination of employee vaccination status; (3) employer support for employee vaccination; (4) COVID-19 testing for employees who are not fully vaccinated; (5) employee notification to employers of a positive COVID-19 test and removal of infected employees from the workplace; (6) face coverings; (7) information provided to employees; (8) reporting COVID-19 fatalities and hospitalizations to OSHA; and (9) maintaining records of employee vaccination and testing.

1.  Employer policies on vaccination or testing

A covered employer must establish, implement, and enforce either a written mandatory vaccination policy or a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering. “Fully vaccinated” means two weeks have elapsed since the employee’s second dose of the Pfizer or Moderna vaccines or one dose of the Johnson & Johnson vaccine. A mandatory vaccination policy must require that all employees (including new hires) provide proof of full vaccination except for employees:

(i)   For whom a vaccine is medically contraindicated;

(ii)  For whom medical necessity requires a delay in vaccination; or

(iii) Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

2.  Determination of employee vaccination status

A covered employer must determine the vaccination status of each employee. The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. The employer must maintain a record of each employee’s vaccination status, preserve acceptable proof of vaccination, and maintain a roster of each employee’s vaccination status. Further, any employee who does not provide acceptable proof of vaccination must be treated as not fully vaccinated.

Under the ETS, “acceptable proof of vaccination status” is:

(i)   The record of immunization from a health care provider or pharmacy;

(ii)   A copy of the COVID-19 Vaccination Record Card;

(iii)  A copy of medical records documenting the vaccination;

(iv)  A copy of immunization records from a public health, state, or tribal immunization information system;

(v)   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); or

(vi)  a signed and dated certification from the employee, subject to penalty of perjury, attesting to the employee’s vaccination status and the relevant details of their vaccination and attesting that the employee has lost and is otherwise unable to produce proof of vaccination.

3.  Employer support for employee vaccination

A covered employer must provide a reasonable amount of time to each employee for each primary vaccination appointment), including up to four hours of paid time off. Additionally, the employer must provide reasonable time and paid sick leave to recover from side effects experienced following each dose.

4.  COVID-19 testing for employees who are not fully vaccinated

A covered employer must ensure each employee who reports to a workplace where other individuals such as coworkers or customers are present and who is not fully vaccinated is tested for COVID-19 at least once every seven days. Unvaccinated or partially vaccinated employees must provide documentation of their most recent COVID-19 test result within seven days of the date on which the employee last provided a test result. Employees who are absent from the workplace for a week or more must be tested for COVID-19 within seven days prior to returning to the workplace and provide documentation of the test result upon return to the workplace.

Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:

(i)    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);

(ii)   administered in accordance with the authorized instructions; and

(iii)  not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

5.  Employee notification to employer of a positive COVID-19 test and removal

Regardless of COVID-19 vaccination status or any COVID-19 testing required under the ETS, a covered employer must: (1) require each employee to promptly notify the employer if the employee receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider; and (2) immediately remove any such employee from the workplace until the employee meets requirements to return to the workplace under applicable CDC guidance, or is cleared to return by a licensed health care provider or meets specific testing results set forth in the ETS on antigen levels and a COVID-19 nucleic acid amplification test.

6.  Face coverings

A covered employer must ensure each employee who is not fully vaccinated against COVID-19 wears a face covering that fully covers the employee’s nose and mouth when indoors and when occupying a vehicle with another person for work purposes, except:

(i)    when an employee is alone in a room with floor-to-ceiling walls and a closed door;

(ii)   for a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements; or

(iii)  where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance (e.g., when it is important to see the employee’s mouth for reasons related to their job duties).

7.  Information provided to employees

A covered employer must inform each employee, in a language and at a literacy level the employee understands, about the requirements of the ETS and any employer policies and procedures implemented under the ETS. The employer must also provide information on COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines.” Covered employers must also notify employees of their legal protections against discrimination or retaliation for reporting work-related injuries or illness or for exercising rights under the ETS. In addition, covered employers must provide information on the criminal penalties under the OSHA Act for knowingly supplying false statements or documentation (for example, false vaccination records).

8.  Reporting COVID-19 fatalities and hospitalizations to OSHA

A covered employer must report to OSHA:

(i)  each work-related COVID-19 fatality within eight hours of the employer learning about the fatality; and

(ii) each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.

9.  Availability of records

Covered employers must provide OSHA for examination and copying, within four business hours of OSHA’s request, the employee’s written policy and aggregate number of fully vaccinated employees, and, by the end of the next business day, all other records and documents required to be maintained under the ETS. Additionally, the ETS requires employers to make certain records available on request to employees or to anyone having that employee’s written authorized consent. By the end of the next business day following receipt of an employee request, the employer must make available for examination and copying the employee’s individual COVID-19 vaccine documentation and any COVID-19 test results and the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace.

Who bears the costs associated with testing and face coverings?

Covered employers are not required to pay for any costs associated with COVID-19 testing or face coverings for employees who choose not to be vaccinated. However, other laws or collective bargaining agreements may require employers to cover those costs. Under this standard, employers likely have to bear the costs of testing as part of reasonable accommodations to employees who are exempted from a mandatory vaccination policy under the ADA or Title VII. The ETS also notes that in certain circumstances, the employer may be required, under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested, such as if the employee is testing during the employee’s regular work shift. As a general matter, however, the ETS notes that by not mandating that employers absorb the costs of testing, the standard creates a financial incentive for unvaccinated employees to become fully vaccinated and avoid that cost—which could run to thousands of dollars each year.

What are the relevant dates under the ETS?

The Federal Register notice stated that the ETS was effective immediately upon publication—although, as detailed below, the U.S. Court of Appeals for the Fifth Circuit temporarily suspended the rule on November 6, 2021, pending further litigation. But, even under the terms of the ETS, employers are not required to comply with its requirements until the key deadlines of December 5, 2021, and January 4, 2022. The later January 4, 2022, deadline applies to covered employers’ obligations to ensure their employees have received the necessary shots to be fully vaccinated against COVID-19 by receiving either two doses of the Pfizer or Moderna vaccines or one dose of the Johnson & Johnson vaccine, or that employees who are not fully vaccinated begin producing a verified negative test on at least a weekly basis. Covered employers must also by January 4 ensure that they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS set an earlier deadline of December 5, 2021, as the effective date for covered employers to comply with all other requirements—such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers. As noted above, in the interest of streamlining implementation, the January 4, 2022, date will also be the new deadline for federal contractors to comply with Guidance under Executive Order 14042 on mandatory vaccination policies.

What is the status of the ETS?

Within a day of publication of the ETS in the Federal Register, the U.S. Court of Appeals for the Fifth Circuit issued a stay on a temporary basis in response to a challenge filed by a coalition of businesses, but that quick action will not be the final word on the ETS. The Fifth Circuit requested briefing by the Biden Administration by November 8, and a reply by the petitioners by November 9 to inform the court’s consideration of the challengers’ request for a permanent injunction. In addition, multiple other lawsuits are pending in other circuits, including challenges filed by several states with Republican attorneys general. Under federal rules for multi-circuit litigation, these lawsuits will be consolidated and heard before a single federal appeals court, which will be initially chosen via a lottery.

Moreover, it is highly likely that, whatever the outcome at the appeals court level, litigants may request review by the U.S. Supreme Court. Although some prognosticators predict a rejection of this Biden Administration initiative because the majority of sitting Supreme Court Justices were appointed by Republican presidents, that outcome, while possible, is far from assured. Thus far, the current Supreme Court has not blocked other governmental initiatives to address the COVID-19 pandemic through vaccination policies. Just a week prior to issuance of the ETS, on October 29, 2021, the Supreme Court issued an order allowing a COVID-19 vaccine mandate for Maine health care workers to remain in effect, even though the Maine law permitted no religious exemptions. In denying the emergency request for an injunction from workers who argued that Maine’s vaccine mandate violated Title VII and the First Amendment, the Court did not explain its reasoning, but the Court’s order was consistent with the Court’s denial of two other emergency challenges to COVID-19 vaccine mandates: one challenging Indiana University’s mandatory vaccination policy, and the other challenging New York City’s vaccination mandate for public school employees.

Given this landscape and that the stated deadlines for compliance with the ETS are a few weeks away, covered employers would be prudent to continue planning for implementation of the ETS’s requirements. Moreover, because OSHA has announced that it plans to issue additional rulemaking on COVID‑19 vaccination requirements under the less stringent evidentiary standard of “significant risk” applicable to a notice-and-comment rulemaking by OSHA, employers can view the measures outlined in the ETS as a preview of future regulatory actions.