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The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) today announced an&nbsp;<a href="https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf" target="_blank" rel="noopener">emergency temporary standard</a> (ETS) providing regulatory requirements for the private sector on COVID-19 workplace vaccination and testing mandates. The ETS implements President Biden’s September 9 directive for OSHA to develop and promulgate regulations requiring companies with more than 100 employees to mandate that workers receive COVID-19 vaccinations or undergo weekly testing, with additional requirements.

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Due to the expedited nature of an ETS, it was not open for public comment. The Office of Management and Budget completed its review, and the ETS will go into effect on November 5, 2021, the date it is published in the Federal Register. There is a 30-day public comment period.

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The ETS and the <a href="https://www.osha.gov/coronavirus/ets2/faqs" target="_blank" rel="noopener">FAQs</a>&nbsp;that were issued address many questions employers were raising about the 100-employee threshold before the ETS was issued. Employers are required to count all employees, including remote workers, part-time workers, minors, and temporary employees. For purposes of determining the 100-employee threshold, workers from staffing agencies are not considered employees of the host company. Independent contractors are also not counted. The total number of employees is based on the entity’s total workforce; it is not determined by location.

Employees should be counted as of November 5. An employer who meets the requirement as of that date will be covered as long as the ETS remains in effect. If an employer increases its workforce such that it meets the threshold on a future date, the ETS applies as of the date the employer crosses the 100-employee threshold.

While remote workers are counted to determine whether an entity is covered by the ETS, vaccination and testing requirements do not apply to workers who work remotely full-time and do not interact with other employees directly as defined in the regulations. If, however, a worker typically works remotely, but occasionally works in a business location with other employees, that worker (if not vaccinated) would have to meet the testing requirements before entering the workplace location.

For employers who have more than 100 employees, the ETS requires that workers be fully vaccinated by January 4, 2022 or submit to weekly testing. It also provides for paid leave to obtain a vaccination as well as to recover from any side effects. Employers do not have to pay for or provide testing under the terms of the ETS, but collective bargaining agreements or applicable state law may impose other requirements on them. The rule, which goes into effect as soon as it is published on November 5, is estimated to impact 84 million U.S. workers.

Covered employees must be fully vaccinated to avoid the testing requirement. The “fully vaccinated” requirement only relates to the initial doses of a vaccine (2 rounds for Moderna and Pfizer-BioNTech; 1 dose for Johnson &amp; Johnson) and does not apply to or require booster shots. Employees who have antibodies from a prior COVID infection or who have some form of “natural immunity” must still be vaccinated to avoid the testing requirement. The ETS does recognize that an employee may elect not to be vaccinated due to a medical condition or disability or a sincerely held religious belief. While an employer must still comply with its obligations under applicable federal and state law in terms of providing any accommodation and not discriminating based on protected status, those employees will still be subject to the testing requirement, as they are not “fully vaccinated” as required by the ETS.

Health care workers (both clinical and non-clinical workers) at the 76,000 U.S. health care facilities that receive federal funds through Medicare or Medicaid must be vaccinated by January 4, 2022 and no longer have a testing option.

Employees who are not fully vaccinated will be required to provide proof of a negative COVID test each week before being allowed to enter the workplace. Employers are not required to pay for or provide testing on-site under the ETS. Employers should be aware that a collective bargaining agreement or state law may impose other obligations.

Starting December 5, employers must ensure that unvaccinated workers are masked in the workplace.

OSHA has issued specific rules related to recordkeeping and reporting that must be maintained by employers. Among other things, employers must keep a roster of employees and their vaccination status that can be supplied within four hours of a request from OSHA. In addition, employers must maintain a record of each test result required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer in conformance with the regulatory standard’s specific requirements.

Employers must communicate with their employees about how the employer is implementing the requirements of the ETS. Employers must issue a written policy to address the entity’s implementation plan, which can be communicated in team meetings, via email, or in a written flyer or other form of communication.

The ETS requires that employers provide up to four hours of paid leave for employees to obtain the vaccination. Employees are not entitled to pay if they are vaccinated outside of normal working hours. In addition, the ETS indicates that additional paid leave must be provided to employees who suffer side effects as a result of getting vaccinated. The standard indicates that up to two days of paid leave would be reasonable given the reported potential side effects from vaccination.

Fines for serious violations of the ETS are up to $13,653, with the possibility of a tenfold increase for willful or repeated violations. The FAQs issued by OSHA indicate that it will consider good faith efforts related to compliance, including issues that may arise as a result of the unavailability of testing resources.

Private employers face additional considerations in light of the ETS’s conflict with some state law prohibitions against employer vaccine mandates. In August,&nbsp;<a href="https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf" target="_blank" rel="noopener">Montana</a> became the first state to prohibit private employers, other than certain nursing care facilities, from mandating COVID-19 vaccination or proof of recent recovery as a condition of employment. Texas followed suit only two months later, with Governor Greg Abbott issuing an&nbsp;<a href="https://gov.texas.gov/uploads/files/press/EO-GA-40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf" target="_blank" rel="noopener">Executive Order</a> prohibiting private employers from “compel[ling] any individual” to receive a COVID-19 vaccination if the person objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Other state legislatures, including Ohio’s, have presented bills attempting to similarly prohibit employer vaccine mandates within their borders.

Under the U.S. Constitution’s Supremacy Clause, federal law generally prevails over conflicting state laws. The concept, referred to as “preemption,” could apply to the ETS in situations where it conflicts with state anti-mandate laws such as those in Texas and Montana. Whether the ETS preempts such laws is expected to be the subject of constitutional legal challenges.

HIPAA, ERISA, and Other Employee Benefit Plan Considerations

Adding another layer of complication, when implementing the ETS, employers should be mindful that:

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We previously noted issues to consider when implementing these programs in <a href="https://www.thompsonhine.com/publications/path-out-of-the-pandemic-considerations-for-employers-and-government-contractors" target="_blank" rel="noopener">a prior COVID-19 Update</a>. In all cases, the extent to which HIPAA, ERISA, and other requirements apply will depend heavily on the specific design of the program. Minor operational or design changes can have big compliance implications. Given the complexity of these issues, employers should seek the assistance of legal counsel when determining how to roll out a vaccination or testing mandate or an incentive program.

We anticipate that the ETS will face legal challenges relating to OSHA’s jurisdiction and the administrative process that led to its implementation. In the near term, if a court enters an injunction temporarily barring its enforcement, it is unclear whether that injunction would apply nationwide. A number of states’ attorneys general have sued regarding the requirements relating to federal contractors, and we expect to see suits related to the ETS as well.

For employers who have not implemented any vaccination requirements, the questions surrounding the ETS’s scope and its future viability leave little in terms of certainty moving forward. Most of the challenges to mandatory vaccination programs (that include exemptions under the ADA or for religious objections) have been upheld by the courts. For the time being, the ETS is law, and unless it is struck down completely, private employers subject to its terms should begin planning accordingly. The 21 states and Puerto Rico that have state-approved OSHA state plans are required to enact rules at least as effective as the federal rule within 30 days. The Labor Department already threatened to revoke that status in Arizona, South Carolina, and Utah when those states did not adopt the rules required by OSHA’s rulemaking in June 2021.

OSHA anticipates that the ETS will be in effect for six months; however, it will continue to evaluate the situation and determine when the ETS will expire.

We will continue to monitor developments regarding the ETS, and our Labor &amp; Employment and Employee Benefits teams are ready to assist employers in navigating the present uncertainty.

For more information, please contact your regular Thompson Hine counsel or:

Nancy M. Barnes Labor &amp; Employment 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

Megan S. Glowacki Labor &amp; Employment 513.352.6503 <a href="mailto:Megan.Glowacki@ThompsonHine.com">Megan.Glowacki@ThompsonHine.com</a>

Beth A. Mandel Employee Benefits &amp; Executive Compensation 513.352.6695 <a href="mailto:Beth.Mandel@ThompsonHine.com">Beth.Mandel@ThompsonHine.com</a>

Keith P. Spiller Labor &amp; Employment 513.352.6722 <a href="mailto:Keith.Spiller@ThompsonHine.com">Keith.Spiller@ThompsonHine.com</a>

Kim Wilcoxon Employee Benefits &amp; Executive Compensation 513.352.6524 <a href="mailto:Kim.Wilcoxon@ThompsonHine.com">Kim.Wilcoxon@ThompsonHine.com</a>

M. Scott Young Labor &amp; Employment 513.352.6617 202.263.4134 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

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OSHA Issues COVID-19 ETS for Large Private Employers

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