Federal OSHA Issues Emergency Vaccinate-Or-Test Standards
Federal OSHA Issues Emergency Vaccinate-Or-Test Standards
On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued its emergency temporary standard (Federal ETS) for the stated purpose of protecting unvaccinated employees of large employers from the risk of contracting COVID-19 by strongly encouraging vaccination. Among other requirements, the Federal ETS would require large employers to impose a vaccinate-or-test requirement for all employees reporting to the worksite.
Immediately after its issuance, a federal appeals court issued an injunction blocking the Federal ETS nationwide for the time being through the issuance of a stay. The stay has since been extended, pending judicial review of the motions to permanently enjoin the Federal ETS. If the courts ultimately resolve in favor of implementation of the Federal ETS, however, compliance will be mandatory for employers governed by federal OSHA, including those operating in New York, Georgia, Illinois, Louisiana, and 25 other states (not including California). Covered employers that fail to comply with the standard could face OSHA citations and penalties of up to $14,000 per violation.
Because production companies are the employers responsible for controlling worksite activities, providing a safe work environment, and for complying with OSHA, production companies should review the new standards with their legal advisers. Also, while the terms of the AMPTP’s Return-to-Work Agreement and the AICP’s Multi-Union Safety Agreement apply to covered unionized workers, OSHA’s revised standards apply to both non-union and unionized employers.
The Federal ETS Applies Only To Large Employers
The Federal ETS applies to employers of 100 or more employees. In assessing this headcount, part-time employees, those working remotely, and employees working nationwide (even across multiple worksites) must be counted. Independent contractors need not be included in the headcount.
The Federal ETS Requires Employers to Mandate Vaccination Or Test Employees, Among Other Requirements
Employers Must Establish a Mandatory Vaccination Policy Or Regularly Test Employees
Of significant importance is the vaccinate-or-test requirement imposed by the Federal ETS. More specifically, the Federal ETS requires employers to implement a mandatory vaccination policy, whereby all employees who do not otherwise qualify for an accommodation based on a covered medical condition or sincerely-held religious belief must have received both doses of a two-dose vaccine or one dose of a single-dose vaccine by January 4, 2022. Employers also must support employee vaccination by providing time off for vaccination (up to four hours of paid time for each primary dose) and time off for recovery.
Alternatively, employers may choose to opt out of the mandatory vaccination requirement by ensuring that unvaccinated workers who report to a workplace where others are present are tested for COVID-19 at least once per week starting January 4, 2022. While the Federal ETS does not address whether employers must pay for this testing, OSHA’s FAQs warn that other laws may require employers to pay for testing. Employers should consult with their legal counsel.
In applying this requirement, employers should note that the Federal ETS does not apply to (1) employees who do not report to a workplace where other individuals such as coworkers or customers are present, (2) employees while they are working from home, or (3) employees who work exclusively outdoors.
As for approved forms of testing, OSHA makes clear that “FDA-cleared, approved, or authorized molecular diagnostic tests [(PCR)] and antigen tests are permitted” under the ETS, but antibody tests are not permitted. And while antigen tests may satisfy the requirements of the ETS, they may not be taken at home without observation by the employer or an authorized telehealth proctor. A full discussion of appropriate testing methods under the Federal ETS can be found here.
Under the terms of the Federal ETS, an employee who previously tested positive for COVID-19 or was diagnosed with COVID-19 by a licensed healthcare provider cannot be required by the employer to undergo COVID-19 testing for 90 days following the date of the positive test or diagnosis.
Unvaccinated Workers Must Wear Face Coverings at the Worksite
Based on the rationale that testing employees once per week cannot prevent an unvaccinated worker from exposing others at the workplace if the worker becomes infected and reports to the workplace between weekly tests, the Federal ETS also requires that unvaccinated workers must wear face coverings in most situations when they are working near others. Separate state or local standards may impose broader mask mandates, which would continue to apply regardless of the Federal ETS.
All Covered Employers Must Maintain A Record Of Each Employee’s Vaccination Status And Other Confidential Medical Information
The Federal ETS requires employers to maintain a record of each employee’s vaccination status as well as each test result provided by each employee. Such records must be maintained as confidential medical records and cannot be disclosed, except as required or authorized by federal law. And some states may impose even more restrictive requirements about how confidential medical information may be used and disclosed.
Records maintained pursuant to the Federal ETS are not subject to normal retention requirements imposed by OSHA. Instead, they must be maintained and preserved only while the ETS is in effect.
The Federal ETS Imposes COVID-19 Notification Obligations for Both Employers and Employees
Under the Federal ETS, employers must provide employees with information about:
- the requirements of the ETS,
- the employer’s workplace policies and procedures established to implement the ETS, including:
a. the process that will be used to determine employee vaccination status,
b. the time and pay/leave employees are entitled to for vaccinations and any side effects experienced following vaccinations,
c. the procedures employees must follow to provide notice to the employer of a positive COVID-19 test or diagnosis, and
d. procedures for COVID-19 testing and face coverings for those who are not fully vaccinated, - information about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated. To satisfy this requirement, covered employers must share the CDC document, “Key Things to Know About COVID-19 Vaccines,” which is available here (CDC, October 7, 2021),
- the employer’s protections against retaliation and discrimination for engaging in activities protected by OSHA statute or regulation or based on a work-related injury or illness, and
- the potential penalties for knowingly providing false information to the employer under 18 U.S.C. 1001 and Section 17(g) of the OSH Act.
This information must be provided to employees in a language and at the literacy level each employee understands.
The Federal ETS Imposes Mandatory Removal of a Positive COVID-19 Case From the Worksite
As noted above, covered employers must require each employee to promptly notify the employer if (s)he receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. The employer must thereafter immediately remove any such employee (regardless of vaccination status) from the workplace until certain criteria is met for returning to work.
Reporting COVID-19 Fatalities and Hospitalizations to OSHA
The Federal ETS requires covered employers to report each work-related COVID-19 fatality to OSHA within 8 hours of the employer learning about the fatality and each work-related COVID-19 in-patient hospitalization to OSHA within 24 hours of the employer learning about the in-patient hospitalization. It is not until the employer learns both about the fatality/in-patient hospitalization and that its cause was the result of a work-related exposure to COVID-19 that the employer’s reporting obligation is triggered.
Most Requirements Of The Federal ETS Apply As Early As December 6, 2021
By December 6, 2021, each requirement of the Federal ETS must be complied with other than testing for those employees who have not completed their entire primary vaccination dose(s). By January 4, 2022, employers must ensure that those who are not fully vaccinated comply with the Federal ETS’ testing requirements.
The ETS is effective for a period of up to six months before it must be replaced by a permanent OSHA standard in order to remain in effect.
The Impact of the Federal ETS on States Outside of Federal OSHA’s Jurisdiction
In states where the federal government does not regulate workplace safety – such as in California, New Mexico, and Hawaii, which are regulated by their own workplace health and safety programs/agency (e.g., Cal/OSHA for California) – the state agency is required to adopt its own set of standards that are just as effective as those imposed by the federal ETS within 30 days.
Employers are advised to consult with their labor and employment counsel to determine how Federal OSHA’s new ETS impacts their workforce in each state where they work.