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Law Alert: OSHA Issues Emergency Regulations Requiring Vaccination or Weekly Testing

by Shannon M. Cohen, A. Jack Finklea, David D. Robinson, Prasad Sharma

November 4, 2021

Today, the Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS) on vaccination and testing. The ETS is part of an action plan announced by President Biden on September 9, 2021, to reduce Covid-19 infection numbers. Specifically, the President has called for private employers with at least 100 employees to ensure either that: 

  1. All employees are vaccinated; or 
  2. All employees are tested at least weekly. 

OSHA is calling for official publication in the Federal Register tomorrow, November 5, 2021. Initial reactions from the trucking industry cite significant burdens further damaging the industry. 
 
What Does the ETS Require? 
The ETS requires employers with at least 100 employees to ensure all employees are either vaccinated or that they are tested at least weekly for Covid-19 and wear face coverings. 
 
When Does the ETS Become Effective? 
The ETS becomes effective immediately, but compliance mandates take effect on December 5, 2021, which is 30 days from publication. One notable exception is the testing mandate for unvaccinated workers, which compliance date is January 4, 2022, which is 60 days from publication. 
 
How Long Will the ETS Remain in Effect? 
An ETS may only remain in effect for six months. The ETS will therefore expire May 5, 2022. OSHA, however, has also begun the notice and comment period by issuing the ETS, perhaps ultimately leading to a final rule with or without modifications based on comments received by the public, with that final rule taking effect at the conclusion of the ETS or sometime thereafter. 
 
How Do Employers Calculate the 100-Employee Threshold? 
The ETS states that it applies to employers who have at least 100 employees at any time the ETS is in effect. For a single corporate entity with multiple locations, all employees at all locations are counted for determining the threshold. Part-time employees and employees working from home are also included. Independent contractors are not included. Once an employer crosses the 100-employee threshold, it will be subject to the standard for the duration of the ETS – even if the employer dips below 100 employees thereafter.
 
Are Drivers Exempted from the Vaccine/Test Requirement? 
No specific exemption for drivers or motor carriers exists. Drivers could only be considered exempt in the unlikely event they fall into one of the enumerated exemptions, which are (1) those who do not report to a workplace where other individuals are present; (2) employees working from home; or (3) employees who work exclusively outdoors. 
 
Are Remote Workers Subject to the Vaccine/Test Requirement? 
The ETS requirements do not apply to those who do not report to a workplace where other individuals are present; to employees working from home (but only while they are working at home); or to employees who work exclusively outdoors. 
 
Who Pays for the Time Employees Spend Getting Vaccinated? 
Employers must provide reasonable time to receive vaccinations, including up to 4 hours of paid time for this purpose. Employers must also provide a reasonable time, including paid sick leave for employees to recover from the effects of the vaccination.
 
Must Employers Keep a Record of Employee Vaccination Status and/or Negative Test Results? 
Yes. Under the ETS, employers must require employees to provide proof of vaccination through medical records or immunization cards, etc. If an employee has no record of vaccination status, a certification by the employee with explicit language swearing to the vaccination details is acceptable. Employers must keep the documentation provided by employees, and employers must maintain a roster of each employee’s vaccination status. Similarly, employers must keep a record of a negative test provided by the employee or the test administered by the employer.
 
What Does It Mean to be Fully Vaccinated? 
Fully vaccinated means a person’s status two weeks after completing all doses of a primary vaccination, or 2 weeks after receiving the second dose of any combination of doses.
 
Are There Any Exemptions to an Employer’s Vaccination Requirement? 
Yes. A compliant mandatory vaccination policy can provide for medical, disability, and religious exemption. Individuals qualifying for these exemptions would be considered unvaccinated and subject to testing and masking requirements. 
 
Who Pays for the Cost of the Tests? 
OSHA has indicated that employers may require employees to bear the cost of required testing, ostensibly because the employee would have had the opportunity to be vaccinated at no cost. Although the ETS does not require the employer to bear the costs of testing for individuals qualifying as exempt from the vaccine requirement due to medical or religious reasons, other laws may impact the responsibility for testing costs. 
 
How Does Weekly Testing Work? 
An employee who reports to a workplace at least once every seven days must be tested at least once every seven days and provide documentation of the test. An employee who does not report to a workplace during a period of seven days or more (including places in which customers are present) must be tested within seven days prior to returning to the workplace. 
 
Are Rapid Tests and/or Antibody Tests Acceptable? 
The ETS requires a test authorized for emergency use by the FDA to detect current infection. In essence, rapid antigen tests are acceptable, but antibody tests are not. Importantly, the test cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
 
What Happens If an Employee Tests Positive? 
If an employee tests positive or is diagnosed with Covid-19, the employee must promptly notify the employer. The employee must be immediately removed from the workplace until the employee receives a negative NAAT test, meets the return to work criteria established by the CDC, or receives a recommendation to return to work from a licensed healthcare provider.
 
Is Proof that Employees Have Contracted and Recovered from Covid-19 Acceptable to Prove Vaccination Status? 
No. OSHA has determined that employees who have had the virus and recovered remain in “grave danger” justifying the ETS and should either be vaccinated or be subject to the weekly testing and mask mandate.
 
Are Masking and/or Social Distancing Required by the ETS? 
The ETS requires an employee who is not fully vaccinated to wear a face covering when indoors and when occupying a vehicle with another person for work purposes. Limited exceptions exist, including when someone is alone in an enclosed office and while eating and drinking.
 
What Are the Penalties for Non-Compliance? 
The ETS would subject employers who violate the terms of the ETS to the normal citation and penalty structure applicable to other OSHA violations. To the extent a violation is deemed “serious,” penalties can reach up to $13,653 per violation. If, however, the violation is deemed “willful” or “repeated,” the maximum penalty could reach up to $136,532 per violation.
 
Conclusion
A number of states and industry groups have announced their intent to challenge OSHA’s authority to mandate vaccines through the ETS. There are numerous ongoing challenges to private employer and state vaccine mandates and while the majority of these mandates have been upheld preliminarily, the analysis differs with respect to the OSHA ETS. Whether the ETS will be enjoined bears watching.
 
The OSHA ETS places a significant burden on covered employers. While the analysis to determine whether an operation is in fact a covered employer is complex, we anticipate that a host of compliance issues will follow the initial coverage determination. 

For more information, please reach out to David Robinson, Jack Finklea, Shannon Cohen, or Prasad Sharma.