The Occupational Safety and Health Administration (OSHA) has issued its Emergency Temporary Standard (ETS) mandating certain COVID-19 safety protocols. The ETS answers some of the questions employers have had while waiting for the standard.
KEY THINGS TO KNOW
What companies are covered under the emergency temporary standard?
The ETS applies to companies that employ 100 or more people. Coverage is determined based on the number of employees company-wide, and not the number of employees at a specific facility. Part-time employees are included in the threshold number. Independent contractors are not. Employees from temporary staffing agencies are considered employees of the staffing agency for purposes of determining coverage. Employees of related corporate entities, such as parent companies and subsidiaries, are not aggregated for purposes of the threshold for coverage unless both companies jointly determine safety practices. Employees who are assigned to work at home are included for purposes of determining coverage. However, as noted below, in many cases those employees will not be subject to the vaccine or testing requirements.
Federal contractors covered by Executive Order 14042, which mandates COVID-19 vaccines, are not covered by the ETS. Similarly, employers covered by the earlier-issued OSHA Emergency Temporary Standard for health care facilities are not covered by this OSHA ETS. However, the Centers for Medicare & Medicaid Services has also issued emergency regulations that will require health care workers at Medicare- and Medicaid-participating facilities to be vaccinated.
What are the effective dates?
The ETS took effect when it was published in the Federal Register on Friday, Nov. 5, 2021. The specific obligations are phased-in over time. For example, by Dec. 5, 2021, covered employers are required to begin the paid time off and paid sick leave obligations discussed below and develop written COVID-19 vaccination policies. The requirements to have employees fully vaccinated or subject to COVID-19 testing will take effect Jan. 5, 2022.
What are the requirements for COVID-19 vaccination and testing?
Employers have an option. They can establish a policy requiring that all employees be vaccinated, except those for whom the vaccine is medically inappropriate and those entitled to a reasonable accommodation for sincerely-held religious beliefs or disabilities. As an alternative to mandating vaccination for all, employers can choose to allow workers who have not provided proof of COVID-19 vaccination to provide proof of weekly COVID-19 testing and wear a face mask while at the workplace.
The vaccination and testing requirements do not apply to employees who do not report to a workplace where others are present, including those who work from home, and do not apply to those who work outdoors exclusively. However, the obligations will apply to those individuals to the extent they report to a workplace with others periodically.
One question that has been prominent for employers awaiting the ETS is whether employers would be required to pay for COVID-19 testing. The OSHA ETS says specifically that employers are not required to pay for testing. OSHA does note, however, that employer obligations to pay for testing may exist in other laws or regulations, in collective bargaining agreements or as a result of a reasonable accommodation.
What about reasonable accommodations?
The ETS acknowledges that some employees with disabilities or certain sincerely-held religious beliefs may be entitled to exceptions from vaccination or testing requirements as a reasonable accommodation. The ETS includes no comment on the procedures or standards for reasonable accommodation requests, referring employers to related guidance from the EEOC. Notably absent from the ETS is any indication of how OSHA will take reasonable accommodations into account during OSHA inspections. Employers evaluating reasonable accommodation requests will have to speculate on whether an accommodation will be considered reasonable by OSHA or will be considered too great an accommodation and therefore a safety violation.
What are the mask requirements?
Employees who are not vaccinated and are subject to regular COVID-19 testing are required to wear masks at all times in the workplace, except when alone in a room with floor to ceiling walls with a closed door, at limited times when eating, drinking and lowering masks briefly for security identification purposes. There is also an exception when it can be shown that a face covering would cause a greater hazard to the employees.
Employers are not required to insist on masks for people who are vaccinated. However, employers are strongly encouraged to require masks for fully-vaccinated employees in areas of substantial or high levels of COVID-19 transmission.
What are the requirements for paid time off to be vaccinated?
Employers must provide a reasonable amount of paid time off at an employee's regular rate of pay to allow the employee to receive each of the primary vaccination doses. Up to four hours for each shot is required. Employees may not be required to use time from existing PTO banks for this purpose.
What are the requirements for paid sick time due to side effects?
Employers must provide reasonable paid time off for employees to recover from side effects experienced as a result of a primary vaccination dose. OSHA has said that a cap of two days would be presumed reasonable. Employees can be required to use accrued time under an employer's existing sick time bank.
What are the other major requirements?
Employers are required to develop a written policy for compliance with the emergency temporary standard. Employers are also required to determine each employee's vaccination status and to require proof of vaccinations. Employers are required to give their employees notice of some rights and obligations under the standard. For example, employees must be given basic information about the efficacy, safety and benefits of vaccination, and must be told that employees will not be retaliated against or discriminated against for reporting alleged violations of ETS or for exercising any rights under the OSH Act.
The ETS also establishes rights for the employees or their representatives to access records of their vaccine and COVID-19 test results and data about the aggregate number of fully-vaccinated employees at the workplace.
The ETS also sets specific rules concerning reporting work-related fatalities and in-patient hospitalizations. Specifically, a COVID-19-related workplace fatality must be reported to OSHA within eight hours of the employer learning of the fatality. A COVID-19-related in-patient hospitalization resulting from a workplace exposure must be reported to OSHA within 24 hours of the employer learning of the in-patient hospitalization. This varies from the general OSHA rules for reporting. Under general OSHA reporting rules, work-related fatalities must be reported to OSHA only if they occur within 30 days of the work-related incident. Similarly, under the general reporting rules, in-patient hospitalizations must be reported to OSHA only if they occur within 24 hours of the workplace exposure.
What if we have union-represented workers?
The OSHA ETS does not include specific obligations for companies with union-represented employees. However, implementation of the requirements of the OSHA ETS will result in changes in terms and conditions of employment. Therefore, employers with union-represented employees must give advance notice to the union of how the OSHA ETS will be implemented at the workplace, and an opportunity for the union to bargain over the effects of implementing the obligations.
What is next?
The Attorneys General in a number of states have already filed litigation challenging the federal government's right to impose the ETS. Whether any federal court will stop, limit or delay implementation of the ETS remains to be seen. We will report on any significant developments in the courts.
OSHA's commentary with the ETS says specifically that it is OSHA's intention that ETS preempts any state or local laws that are inconsistent with its terms. That, too, will likely be the subject of litigation.
There are some states in which workplace safety is enforced not directly by federal OSHA, but by a state agency which is bound by law to adopt standards at least as protective as those rights by federal OSHA. In those state plan states, the state safety agency has 30 days to implement its own program, consistent with the OSHA ETS.
Even though the OSHA ETS is going into effect immediately, OSHA is accepting comments from the public about the standard for the next 60 days.
What is the enforcement method?
OSHA enforces its standards by issuing citations as a result of workplace inspections. Employers who experience OSHA inspections while the ETS is in effect can expect to be required to produce their written policies and demonstrate compliance. OSHA has the authority to require that violations be corrected, to impose a deadline for the corrections to be made and to impose monetary fines for each violation. The maximum penalty currently for serious OSHA violations is $13,653 per violation. The maximum penalty for willful violations is $136,532 per violation .
So what do we do?
Any company that is covered by the OSHA emergency temporary standard should develop a comprehensive plan for compliance. That will require, at a minimum, coordination with your human resources and safety teams, and communication as needed with outside counsel.
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.
