A federal appeals court lifted a judicial stay on the emergency temporary standard (ETS) requiring employee COVID-19 vaccination or weekly testing, and the U.S. Supreme Court is hearing arguments January 7, 2022, about staying or striking down the rule. Will you be ready if the Supreme Court leaves the rule in place?
The Occupational Safety and Health Administration (OSHA) has said it will not issue citations for noncompliance with requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9.
You may want to move forward with your compliance in case the rule stands.
“My guidance for employers is to proceed with the assumption this is going to be in place and enforceable,” Attorney Robert Ayers, an environmental and workplace safety partner at Holland & Hart LLP, says.
Ayers recommends that once employers confirm they are covered by the OSHA ETS, and not the Centers for Medicare and Medicaid Services (CMS) rule or the federal contractors’ order, they look at OSHA’s templates for mandatory vaccination, testing, and face coverings.
“You don’t have to use the template, but at least use it as a check to make sure you have a proper plan in place.” The templates can help identify all the program elements the ETS requires.
What’s Happening with OSHA’s Healthcare ETS
As OSHA prepares to implement and enforce one ETS, the agency has withdrawn another. On December 27, the agency announced it had withdrawn the expired portions of its June 21 COVID-19 ETS for healthcare facilities and healthcare support services. However, the rule’s COVID-19 log and reporting requirements, issued as part of an interim final rule, remain in effect.
OSHA announced it intends to pursue a handful of actions to address COVID-19 exposures in health care and healthcare support services:
- Development of a permanent healthcare COVID-19 standard similar to the ETS;
- Rulemaking to establish a permanent infectious disease standard; and
- Continued inspection and enforcement in health care and healthcare support services, using the agency’s authority under the General Duty Clause of the Occupational Safety and Health (OSH) Act.
The agency relies on the General Duty Clause to address a number of occupational hazards, including heat stress, infectious diseases, and workplace violence. Critics of the practice include the Occupational Safety and Health Review Commission, which vacated OSHA citations in a fatal heat illness incident, calling the agency’s reliance on the General Duty Clause a “catch-all” and “gotcha” for hazards without formal standards.
The General Duty Clause (§5(a)(1) of the OSH Act) reads:
“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees….”
The vaccinate-or-test ETS requires employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers. Employers are not required to pay for testing but must provide paid leave for vaccination and recovery from vaccine side effects.
Under the OSH Act, an ETS must meet a two-part test—evidence of a grave workplace danger and the need for a temporary rule—to survive judicial challenge. OSHA asserted in the preamble to the ETS that unvaccinated workers face a grave danger from workplace exposures to SARS-CoV-2, the virus that causes COVID-19. The agency concluded that an ETS is needed to promote vaccination, which it considers the most effective workplace control.
The rule established vaccination, vaccination log, testing, and face covering requirements that apply in agriculture; construction; general industry; and longshoring, marine terminals, and shipyards. The emergency rule applies to employers with 100 or more employees corporatewide at any time while the rule remains in effect. When the agency issued the ETS, it asked for comment on whether the rule should apply to employers with fewer than 100 employees.
The emergency rule does not cover federal contractors, which are covered by federal policy, or healthcare facilities and services covered by the CMS rule. The OSHA ETS makes exceptions for employees working exclusively outdoors, working from home, or who do not report to a workplace where coworkers or customers are present.
The federal ETS preempts any state and local laws barring employers from implementing face covering, testing, and vaccination programs.
Employers must establish and implement either a mandatory program of employee vaccination or a program of weekly testing for COVID-19 infection. In a mandatory vaccination program, all employees must be vaccinated, except those with medical contraindications, for whom medical necessity requires a delay in vaccination, or who are legally entitled to an accommodation, such as those with a disability or sincerely held religious beliefs.
The testing provisions require the use of face coverings to protect unvaccinated workers.
The emergency rule also contains an employee information requirement. Employers must provide employees with information in a language and at a literacy level they understand. It must cover information about the requirements of the ETS and the employer’s policies and procedures established to fulfill the ETS; COVID-19 vaccine benefits, efficacy, and safety covered in the Centers for Disease Control and Prevention’s (CDC) “Key Things to Know About COVID-19 Vaccines” document; whistleblower protections against retaliation and discrimination; and laws with criminal penalties for knowingly supplying false statements or documentation.
Recordkeeping, Proof of Vaccination
Employers are required to confirm the vaccination status of employees, preserve acceptable proof of vaccination, and maintain a roster of their employees’ vaccination status. Employees who fail to provide acceptable proof of vaccination should be treated as unvaccinated, falling under the testing and face covering requirements. The proof of vaccination, vaccination roster, and testing program records must be maintained according to the requirements of OSHA’s employee medical records standard (29 Code of Federal Regulations (CFR) §1910.1020).
Acceptable forms of proof of full or partial vaccination include:
- Record of immunization from a healthcare provider or pharmacy;
- Copy of a CDC COVID-19 vaccination record card;
- Copy of medical records documenting the vaccination;
- Copy of immunization records from a public health, state, or tribal immunization
- Copy of other official documentation containing type of vaccine, dates of
administration, and name of healthcare professional or clinic administering the
- Signed and dated attestation when an employee has lost or is otherwise unable
to produce other acceptable proof.
Employers also must report work-related COVID-19 fatalities within 8 hours and work-related in-person hospitalizations within 24 hours. Employers must provide OSHA, within 4 business hours, with records of the aggregate number of fully vaccinated workers and total number of employees in the workplace and the company’s written vaccination policy. They must provide the records of the aggregate number of fully vaccinated workers and the total number of employees to any employee or employee representative by the end of the next business day after a request.
Other records and documents must be provided to OSHA by the end of the next business day. Employers also must provide individual vaccine information and test results to an employee, and anyone having written consent, by the end of the next business day after a request.
The emergency rule contains a paid leave requirement for vaccination and recovery from side effects. An employer must provide up to 4 hours of paid leave for each vaccine dose, including travel time. Employees also are entitled to a reasonable amount of paid sick leave to recover from each dose of the primary vaccine series.
Because the ETS does not specify any parameters for leave to accommodate vaccine side effect recovery, Ayers has advised his clients to develop their own policies. “I’m recommending at least a few days; but make the policy clear in your COVID-19 plan while the ETS is in effect,” he says.
Face Covering Requirements
Employers must ensure employees who are not fully vaccinated wear face coverings in indoor spaces or inside work vehicles occupied by others. Face coverings must fully cover the mouth and nose and be replaced when damaged, soiled, or wet. Employers must allow all employees to wear face coverings unless doing so creates a greater hazard. Employers also must allow employees to wear respirators but must comply with the rule’s mini-respiratory protection requirements.
Exceptions to the face covering requirement include:
- When working alone in a fully enclosed room with the door closed,
- When eating or drinking or for safety and security identification purposes,
- When wearing required face masks or respirators, or
- When the use of face coverings is infeasible or creates a greater hazard.
Customers and visitors must not be prohibited from wearing face coverings.
Testing, Removal, Return to Duty
A worker who is not fully vaccinated must be tested for COVID-19 at least weekly if the worker is in the workplace at least once a week. A worker must be tested within 7 days before returning to work if the worker is away from the workplace for a week or longer. Employers are not required to pay for COVID-19 testing under the federal ETS but are not barred from paying for testing. However, states or localities may require employer payment for testing.
There is an exemption for testing. Employers are prohibited from requiring regular COVID-19 testing of employees who are not fully vaccinated for 90 days after a positive COVID-19 test or positive diagnosis by a licensed healthcare professional.
Employees must promptly report to their employer that they are COVID-19-positive, and employers must immediately remove infected employees from the workplace. Under the ETS, employers are not required to provide paid time off for removal, but paid leave may be required by other laws or collective bargaining agreements.
Removed employees may return to work when:
- An employee receives a negative result on a confirmatory COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test.
- The CDC’s “Isolation Guidance” criteria are met.
- Clearance is provided from a licensed healthcare provider.
Ayers recommends that employers get ready for OSHA’s implementation and enforcement of the ETS while monitoring developments in the courts. The emergency rule contains requirements for vaccination, testing, and face coverings; employee information; paid leave for vaccination and side effect recovery; medical removal and return-to-work criteria; and recordkeeping and reporting.