The highly anticipated US Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard COVD-19 rule for private-sector workers was announced on 5 November 2021. This ETS impacts approximately 84 million workers nationwide.
Employers covered
Businesses with 100 or more employees in the US are covered by the Emergency Temporary Standard (ETS). It is an enterprise, not a location, test. Part-time employees are counted, but independent contractors are not.
In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes. Two or more related entities may be regarded as a single employer for Occupational Safety and Health Act purposes if they handle safety matters as one company.
Employees not covered
The requirements of the ETS do not apply to the covered employees of covered employers:
who do not report to a workplace where other individuals such as co-workers or customers are present;
- while working from home; or
- who work exclusively outdoors.
- Option to provide testing
Employers may choose to provide employees the option to get tested weekly rather than be vaccinated. A COVID-19 test may not be both self-administered and self-read unless observed by the employer or an authorised telehealth proctor. The ETS does not require an employer to pay for any costs associated with testing.
Face coverings
Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes except:
- when alone in a closed room;
- for a limited time while eating or drinking or for identification purposes;
- when the employee is wearing a respirator or facemask; or
- when the employer can show the use of a face covering is infeasible or creates a greater hazard that would excuse compliance.
The ETS does not require an employer to pay for any costs associated with face coverings.
Compliance dates
Employers must comply with all requirements of the ETS except for COVID testing for employees who are not fully vaccinated by 5 December. The testing requirement compliance date is 4 January 2022. However, employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not completed the two-week waiting period.
Employers not covered
The Centers for Medicare and Medicaid Services (CMS) is requiring workers at healthcare facilities participating in Medicare or Medicaid to be fully vaccinated by 4 January 2022, unless they receive a medical or religious exemption. The rule applies to employees whether their positions are clinical or non-clinical and includes employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services at the facility under contract or other arrangements. OSHA's ETS will not apply to workplaces covered by the CMS rule.
In addition, OSHA's rule does not apply to workplaces that are already covered by the directive that requires federal contractors to adopt a vaccination requirement. Please see our 6 October 2021 Legal Alert for more information on that requirement.
Documentation and reporting requirements
Employers must obtain each employee's vaccination status and maintain a roster indicating each employee's vaccination status. Vaccinated employees must provide proof of vaccination which the employer must maintain. Vaccination proof documents should, like all other employee medical records, be kept confidential. Vaccination rosters are to be provided only to those who 'need to know'. Employers must make records available upon request to employees, an employee representative, and to OSHA.
Employers are also required to report to OSHA all work-related COVID-19 fatalities within eight hours of the employer being placed on notice of such a death. Employers must also report to OSHA each work-related COVID-19 hospitalisation within 24 hours of notice.
Paid leave
As expected, the ETS requires employers to offer paid leave to obtain the vaccination and to recover from any side effects. Up to four hours of additional paid leave must be offered to employees to get the shot, which includes travel time. Paid leave for recovery from side effects does not have any limitation but employers may require employees to use existing benefits (sick time, paid time off, etc.) for such leave.
Rules for those not fully vaccinated
The ETS recognises that many employees are still working remotely or working a hybrid schedule. Unvaccinated or not yet fully vaccinated employees who physically come to the workplace at least every seven days must be tested for COVID-19 every seven days and must provide documentation every seventh day.
Employees who do not report to work every seven days must be tested within seven days of their arrival at the workplace and must provide proof of a negative test upon their return to the workplace. These employees cannot return to the office until they provide proof of a negative test.
Employees with a positive COVID-19 test or diagnosis
These COVID testing requirements are not required for the 90 days after an employee either tests positive for COVID-19 or receives a COVID-19 diagnosis. Since employers must maintain of record of these positive tests and diagnoses, employers must require all employees who test positive or who receive a COVID-19 diagnosis to report it and must immediately remove those employees from the workplace.
The employee cannot return to the workplace until he or she:
- obtains a negative NAAT (PCR) test;
- meets return to work criteria set forth by the CDC; or
- receives a return to work note from a healthcare provider.
Opposition to the ETS
Opponents have filed legal challenges to the ETS in all 12 of the United States Courts of Appeals. On 12 November 2021, the US Court of Appeals for the Fifth Circuit issued an order staying enforcement of the ETS pending full judicial review. On 16 November 2021, the Judicial Panel on Multi-district Litigation consolidated all pending challenges to the ETS and assigned them, by lottery, to the United States Court of Appeals for the Sixth Circuit.
The United States Justice Department, on behalf of OSHA, is likely to ask the Sixth Circuit to lift the stay pending judicial review. In the meantime, OSHA issued a statement on its website stating:
'OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.'
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
