OSHA Publishes Long-Awaited ETS
All Insurance Industry Insights on Thursday, November 4, 2021
Friends and Clients,
This morning, the U.S. Occupational Safety and Health Administration (“OSHA”) published its long-awaited Emergency Temporary Standard (“ETS”) requiring vaccination for all employees of employers with 100 or more employees.
The full ETS can be found here.
The most useful resource on the rule is likely to be OSHA’s FAQs found here.
Here are the key items of compliance concern:
- 100+ Employee Coverage: FAQs 2.A through 2.K speak to the determination of the 100 employee coverage threshold. OSHA has taken a narrow approach to this determination, focusing on employees of a specified company/corporation. They are not applying an integrated employer, controlled group of companies, or joint employer standard. Thus the question will be whether an employer had 100 or more employees (including all employees, full-time, part-time, temporary, seasonal, working at any location including office, home, in-the-field, outdoors/indoors, etc.) on November 5, 2021. If so, that company/corporation is covered for the duration of the OSHA ETS. If the employer subsequently employs 100 or more at any time during the duration of the OSHA ETS, it would become a covered employer from that period forward. Notably, federal contractor workplaces subject to the Safer Federal Workforce Task Force vaccine mandate are excluded from the application of the OSHA ETS. Healthcare employers already subject to last summer’s OSHA Healthcare ETS and State and local government employers are also excluded from coverage under the OSHA ETS.
- Important Dates: Although the rule takes effect tomorrow, November 5, 2021, employers have until December 5, 2021 to implement compliance policies and procedures, and employees have until January 4, 2022 to be fully vaccinated or otherwise accommodated.
Summary of New ETS Requirements
- Develop a mandatory vaccination policy that provides as the only alternative weekly COVID-19 testing and mask-wearing.
- OSHA leaves it up to the employer to determine who must pay for COVID-19 testing.
- Testing is a required alternative for individuals who have requested and received a reasonable accommodation from required vaccination based on a health factor or closely held religious belief.
- Collect vaccination records and maintain a roster showing each employee’s vaccination status.
- Provide 4 hours of paid time off for unvaccinated employees to get a primary vaccine dose (does not include boosters). This paid time off is in addition to and cannot be offset by an employee’s accrued, paid leave (PTO, vacation, sick leave), and an employer may require that the 4 hours be taken during regular working hours. There is no requirement to compensate an employee for 4 hours when the employee obtains the primary vaccine dose outside of working hours.
- Provide reasonable time off and paid sick leave for employees experiencing a side effect from a vaccine dose. Employers may require the employee to use accrued paid sick leave or, if the employer has PTO that is inclusive of sick leave, accrued PTO for any time off or paid sick leave associated with side effects and employers may impose a “reasonable” cap on the amount of time that can be taken for side effects, noting that CDC has indicated most side effects last no more than “a few days.” Employers may not require an employee to “go negative” on an accrued leave balance for paid time off to recover from side effects. So if the employee has no accrued paid leave, the employer must provide reasonable time off and paid leave anyway.
- Neither the 4 hours paid time off for primary doses nor the paid time off for side effects have any retroactive obligations. These benefits are only owed for individuals who become fully vaccinated in accordance with the new rules.
- Provide each employee with an OSHA-required CDC communication on the importance of vaccination.
- Comply with other OSHA recommendations for maintaining safe work environments consistent with CDC guidance and prior OSHA pandemic guidance.
- Nothing in the OSHA ETS requires paid time off for individuals who must be excluded from the workplace due to exposure to COVID-19 or a suspected or confirmed case of COVID-19.
Employees Not Required to Be Vaccinated
Employees who do not work in a workplace with other employees, employees who work from home, and employees who work exclusively outdoors are not subject to the mandate, even though they are still counted toward the 100+ employee threshold for coverage.
OSHA anticipates the ETS will be in effect for 6 months from the date of publication, but may require the ETS to remain in effect longer depending on the status of the pandemic.
Additional Analysis & Considerations
To issue a legally valid OSHA ETS, the agency must show that it acted consistent with its statutory authority, which includes establishment that there is a “grave danger” in the workplace that must be addressed. There are more than a handful of legal considerations that may affect the implementation/enforcement of the OSHA ETS, including among others (1) that the ETS defines unvaccinated employees as the grave danger and not some other safety issue inherent to the workplace; (2) what about the pandemic today poses a greater “grave danger” than circumstances of the past 20 months; and (3) why this “grave danger” only affects employers with 100 or more employees and not smaller employers.
Industry groups, unions, and trade associations have said they have lawsuits ready to file to seek an injunction against the OSHA ETS, and we can only assume many of those are being filed this week. It seems possible that a federal court somewhere will issue a nationwide injunction against the OSHA rule, but legal precedent in this area suggests any such injunction may not be issued until the eve of the final enforcement deadline (i.e. January 4, 2022). As a result, employer reliance on court intervention may be a risky strategy.
We also think the rule will pose significant challenges to the federal contractor community. While the rule has exempted workplaces covered by the Safer Federal Workforce Task Force’s guidance, that exemption poses challenges for federal contractors and subcontractors that may be awaiting coverage—but are not yet covered—by the Safer Federal Workforce Task Force guidance by virtue of not yet having the federal contractor vaccine mandate clause added to their contracts. Similarly, employers with some, but not all, of their workplaces covered by the Safer Federal Workforce Task Force could end up subject to differing vaccine mandate strategies at different work locations.
Employers should keep the link to the OSHA ETS FAQs bookmarked for frequent consultation. Although the rule is certainly burdensome to employers, the agency’s FAQs provide helpful, practical answers to the most pressing compliance questions.
We will continue to keep you advised of further developments.