On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released the long-awaited COVID-19 Emergency Temporary Standard (ETS) for employers with 100 or more employees. At the same time, the Centers for Medicare and Medicaid Services (CMS), an agency of the U.S. Department of Health and Human Services, also released an interim rule (“CMS Rule”) regarding mandatory vaccination requirements for employees at health care facilities that participate in the Medicare and Medicaid programs.[1] As has been widely reported, both the CMS Rule and the ETS include a deadline of January 4, 2022, for covered employees to be fully vaccinated. However, most aspects of the ETS will be in effect starting December 5, 2021. Key takeaways for employers from the OSHA ETS, explained in detail below, include:

• All private employers with 100 or more employees (whether full-time, part-time, temporary, or provisional) must create, implement, and enforce a policy regarding vaccination against COVID-19, testing, and additional safety protocols by December 5, 2021. Employers may choose to require all employees to be vaccinated as a condition of employment, or can have a policy that allows employees to remain unvaccinated, so long as they comply with testing and masking rules.

• Employers must collect and maintain records of their employees’ vaccination statuses by December 5, 2021. As of that date, all workers who are not fully vaccinated must wear face coverings when indoors or inside a vehicle with others for work purposes.

• By December 5, 2021, employers must encourage and support vaccination by:

• providing workers with information about vaccination policy, regulations, and safety;

• permitting paid time off to receive a vaccine; and

• allowing paid sick leave for recovery from vaccination side effects.

• Starting January 4, 2022, employees who are not fully vaccinated must be tested for COVID if they come to the workplace. The ETS provides new protocols for employees to return to work after a COVID-positive test result.

• The Federal regulations supersede and pre-empt any contrary state or local law.

The directive to create national COVID-19-related workplace safety regulations came from President Biden as part of the administration’s Path out of the Pandemic plan (“Plan”) announced on September 9, 2021. The Plan includes a goal of universal vaccination against the coronavirus, including requirements that all federal employees and contractors are fully vaccinated, and calls for all private companies with 100 or more employees to ensure that their workforce is either fully vaccinated or tested weekly.  

In its announcement, OSHA indicates that the ETS will cover two-thirds of the nation’s workforce. The White House has also clarified that the ETS is not applicable to federal contractors subject to the Executive Order regarding mandatory COVID safety protocols.[2]

Who Is—and Who Is Not—Covered Under the ETS?

The rules apply to all employers with 100 or more employees at any time that the ETS, which is effective as of November 5, 2021, remains in effect. The 100-employee threshold includes full-time and part-time workers, temporary workers (as long as they are on the employer’s payroll), provisional and seasonal employees, fully remote employees, as well as any minors (younger than 18).[3]

Individuals other than employees working on site or in close proximity to an employer’s workforce do not count toward the 100-employee threshold. For instance, independent contractors and employees of a staffing agency at a host employer are not counted towards the 100-employee threshold.[4] When employees of a staffing agency are placed at a host employer location, only the staffing agency would count these workers for purposes of the 100-employee threshold. However, a host employer may require the staffing agency to ensure that temporary employees comply with the host employer’s policy.

Employers should count employees across all worksites (including in different states) to determine if they meet the 100-employee threshold. If the employer has 100 or more employees on November 5, 2021, the ETS applies to that employer, even if the employer subsequently falls below the 100-employee threshold. Additionally, if an employer has fewer than 100 employees on November 5, 2021, but subsequently hits the 100-employee threshold for coverage, the employer must then come into compliance with ETS requirements, and remain so for the entire time the standard is in effect, regardless of fluctuations in the size of the workforce. The initial duration of the ETS is 6 months, or until May 5, 2022.

Even though the following employees count towards the 100-employee threshold, the ETS requirements will not apply to employees:

• working from home (including fully remote employees and employees working remotely and not working in-office on at least a weekly basis);

• who do not report to a workplace where others are present; or

• who work exclusively outdoors.

The ETS also does not apply to workplaces subject to the guidance issued by the Safer Federal Workforce Task Force, including private companies that contract with federal agencies. This ETS also does not apply to those health care settings covered by the previously issued ETS, as that standard remains in effect. Notably, however, health care entities covered by the new CMS interim rule will be required to comply with the ETS applicable to their workplace settings, as CMS worked closely with OSHA to ensure these regulations were complimentary and not overly duplicative. Finally, the ETS does not eliminate obligations under collective bargaining agreements that provide health and safety protections that are at least as effective as the ETS.

Vaccination Policies Required

All covered employers must establish, implement, and enforce a written mandatory vaccination policy, if they have not already done so, by December 5, 2021, or ensure that existing policies comply with the ETS. In the alternative, an employer may establish, implement and enforce a written policy that allows employees to choose to either (i) be fully vaccinated or (ii) provide proof of regular testing and wear a face covering at work.

Written vaccination policies[5] must include:

• requirements for COVID-19 vaccination;

• applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs);

• information on determining an employee’s vaccination status and how this information will be collected;

• paid time off (of up to 4 hours) for vaccination and reasonable time to recover from adverse effects of the vaccination;

• notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;

• information to be provided to employees (e.g., how the employer is making that information available to employees); and

• disciplinary action for employees who do not abide by the policy (up to and including termination of employment).[6]

In addition to addressing the above, employers should include all relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement, all of which are necessary components of an effective plan. There is no requirement to submit the policy to OSHA. However, OSHA is authorized to request an employer’s written plan for examination and copying. If an employer receives such a request, regulations require that the plan be provided within four hours of a request.

Employers must allow employees to request a reasonable accommodation from the vaccination requirements for employees: (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. [7]

Verification & Recordkeeping

The ETS requires covered employers to determine the vaccination status of all employees by December 5, 2021. Vaccinated employees can submit a health care provider, pharmacy, or other medical immunization record, a copy of the COVID-19 Vaccination Record Card (white card), records from a public health information system, or any other official documentation. If such documentation cannot be produced, an employee may submit a signed, dated, sworn attestation, acknowledging that knowingly providing false information may subject the signatory to criminal penalties.[8] Employers that have already collected vaccination data from their workforce prior to the ETS effective date of November 5, 2021, will not have to re-do or revisit their employees and request additional data. Employers should keep vaccination records in a confidential medical record, separate from regular personnel files.

Employers must maintain a roster of employees’ vaccination status, which must be treated as employee medical records, except that they are not subject to usual retention rules and need be maintained only for the duration of the ETS’ effect.

Employers must also maintain a record of each COVID-19 test result required to be provided by each employee pursuant to this ETS or obtained during tests conducted by the employer.

Promoting Worker Vaccination

Employers are required to support vaccination, by providing the following by December 5, 2021:

• Paid Time (up to 4 hours) for employees to receive a vaccine against COVID-19. If an onsite vaccination clinic is available, then participation in such a clinic should be “on the clock,” consistent with applicable wage and hour laws.

• Paid Sick Leave in a reasonable amount, for employees to recover from any side effects associated with the COVID-19 vaccines. Employers may require employees to use accrued Paid Time Off. However, if an employee has no time accrued, employers must provide extra paid leave. In addition, employers are permitted to set a cap on the amount of time provided to employees for recovery.[9]

Requirements for Unvaccinated Workers

Testing

The ETS requires employers to ensure that employees who are not fully vaccinated, and who report to a workplace where others are present (whether coworkers or customers), comply with certain rules starting on January 4, 2022:

• Be tested for COVID-19[10] at least once every seven days; and

• Submit documentation of their most recent test result at least every seven days.

The regular testing requirement does not apply to workers who do not report to a worksite at least once a week, but, prior to appearing at the workplace, such unvaccinated employees must also test and provide test results that were obtained no earlier than 7 days prior. The testing requirement is waived for individuals who had a diagnosed case of COVID-19 within the prior 90 days.

Testing is required for all unvaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing conflicts with a worker’s sincerely held religious belief, practice, or observance, the worker may be entitled to a reasonable accommodation.

Administering a Testing Policy

Employees who fail to provide a test result may not be permitted to remain at a workplace. Consequently, an employer policy should anticipate consequences for employees who fail to comply with the testing requirements, especially in the event of repeated failure to produce test results as required.

Employers are required to maintain a record of each test result, and store such records as a confidential medical record, subject to the same retention requirements as vaccination records.

The ETS explicitly states that employers are not obligated to bear the cost of testing, but notes that testing may be required by other laws, regulations, or collective bargaining duties. OSHA officials have also stated that they will work with employers in the event of a test shortage, although it is unclear how any claims regarding the unavailability of tests should be managed. The ETS is silent on who pays for testing where the employee is unvaccinated because of a medical or religious reason.

Face Coverings

Workers who are not fully vaccinated are required to wear a compliant face covering[11] effective December 5, 2021, unless:

• outdoors;

• alone in an enclosed room with floor to ceiling walls and a closed door;

• briefly, while eating or drinking;

• while wearing a respirator or facemask; or

• when wearing such covering would create a greater hazard that that mitigated by the covering.

However, employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless the employer can demonstrate that doing so would create a hazard.

Rules When an Employee Tests Positive

All covered employers must require their employees to promptly disclose when they have received a COVID-19 positive test result or a diagnosis of COVID-19 by a licensed health care provider. Employees with a positive COVID-19 test or diagnosis may not be permitted to return to workplace before one of the following conditions is met:

• A negative result for a confirmatory COVID-19 test after a positive rapid test result is obtained;

• Return to work criteria in the Centers for Disease Control and Prevention’s (CDC’s) Isolation Guidance (i.e., 10 days/fever free for 24 hours/symptoms improved) is met; or

• A licensed health care provider recommends that the employee may return to work.

The ETS does not explicitly require employers to provide paid leave in the event of a positive COVID test, but other laws, employer policies or collectively bargained agreements may obligate employers to do so.

After returning to work following a positive COVID-19 test or being diagnosed with COVID-19 by a licensed health care provider, employers may not require that such employee undergo testing for 90 days following the date of their positive test or diagnosis.

Employer Communication to Employees

Employers are required to provide information regarding their policies and procedures established to implement the ETS, in a language and at a literacy level the employee understands, regarding the employer’s vaccination policy(-ies) (see section above about what must be included in such a policy). Employers also have to provide a notice regarding the safety and efficacy of COVID-19 vaccines from the CDC, and information about OSHA’s non-retaliation rules and the penalties for not complying.

An employer may provide this information to employees through email communications, printed fact sheets, or during a discussion at a regularly scheduled team meeting. There are no formal training requirements. The ETS does not specify the frequency with which employers must provide this information to employees. However, if an employer modifies its policies or procedures, it must provide any updated or supplemental information to employees. This information should also be provided to new hires.

Penalties for Noncompliance

Penalties for noncompliance with the ETS are consistent with existing OSHA violation penalties. OSHA may issue a penalty for violating or failing to follow the ETS up to $13,653 per violation. Penalty for failure to abate an OSHA citation may be up to $13,653 per day beyond the abatement date. For willful or repeated violations, the penalty may be up to $136,532 per violation.

States and Local Authorities Preempted Unless Authorized by a State Plan

OSHA intends for the ETS to preempt[12] and invalidate any state or local requirements that ban or limit an employer’s authority to require vaccination, face coverings, or testing, such as those imposed by Texas Governor Greg Abbott. To that end, the ETS preempts states and their political subdivisions from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally approved state plan.

There are currently 22 state plans covering both private sector and state and local government workers, and there are six state plans covering only state and local government workers. State plans are required to adopt and enforce occupational standards that are at a minimum as effective as federal OSHA’s requirements. Therefore, state plans must adopt this ETS or an ETS that is at least as effective as this ETS by December 5, 2021. State plans must notify Federal OSHA of the action they will take by November 20, 2021. The state plan standard must remain in effect for the duration of the ETS.

New York State has not adopted a state plan for private employers. The New York Department of Labor (NYSDOL) has not yet advised whether the ETS supersedes the obligations under the HERO Act, as some provisions of the HERO Act are not directly covered by the ETS.[13]

Additional Resources

OSHA has provided guidance, including numerous fact sheets, such as an explanation of the rationale and scope of the ETS, a summary of key points about the binding rules, further information about employer obligations and workers’ rights under the ETS, and Frequently Asked Questions (FAQs) that OSHA will update as it receives questions.

What Employers Should Do Now

• Determine whether your company meets the 100-employee threshold. If your company employs close to 100 people, it may be safest to presume that the ETS does or will apply to you, even if most employees are remote, work in various locations, or are mostly part-time or temporary workers.

• Review your company’s current health and safety policies and revise as needed to comply with the ETS’ rules for both vaccinated and unvaccinated workers. Employers are required to have a written policy regarding vaccination (and requiring unvaccinated employees to wear masks) by December 5, 2021. Employees who are not fully vaccinated by January 4, 2022, will have to start complying with testing rules on that date. OSHA has provided two sample policies: one requiring all workers to be vaccinated and one permitting workers the choice to remain unvaccinated, as long as they comply with testing and face covering rules.

• Communicate in an understandable language and literacy level with your employees about the ETS and how it applies to them. Information shared should include:

  • timelines they can expect for the release of internal policies and the initiation of any applicable procedures;

  • processes for obtaining vaccination status;

  • leave policies for vaccination and recovery time;

  • procedures to follow in case of a COVID-19 positive test or diagnosis; and

  • testing and masking rules for employees who are not fully vaccinated.

• If you have not collected information regarding employees’ vaccination status, do so now, and create a log, consistent with the ETS requirements, that is maintained as a confidential record. If you collected such data prior to November 5, 2021, there is no need to do so again.

• Distribute information from the CDC regarding COVID-19 vaccines.

• Post or distribute information about OSHA and the ETS, including the OSHA Fact Sheet about Workers’ Rights, the Fact Sheet on Penalties for False Statements and Records,

• In workplaces where employees are represented by unions and covered by collective bargaining agreements, determine what obligations you may have to pay for testing for unvaccinated employees. In these workplaces, you should be prepared to meet, upon request, with employees’ bargaining representatives with respect to the impact and effects of the ETS, including concerning payment for testing and impact and effect on any unvaccinated employees who decline to pay for their own required testing.

• If operating in a state where there are restrictions on vaccination, face coverings, or testing, closely monitor any litigation regarding preemption.

Christopher Shur, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

ENDNOTES

[1] For detailed information about the new CMS Rule, please see our Insight “Medicare and Medicaid Providers, Take Note: New CMS Rules Require Health Care Workers to Be Fully Vaccinated by January 4.”

[2] On November 4, 2021, however, the White House announced that the December 8, 2021, deadline for contractors to be fully vaccinated has been extended to January 4, 2022, to align the deadlines of requirements for federal contractors with those contained in the CMS interim rule and the new ETS.

[3] OSHA is also accepting comments for the next 30 days and will consider expanding the ETS coverage to employers with less than 100 employees.

[4] See OSHA’s FAQs at Q 2.A.7 and Q. 2.A.8.

[5] OSHA has issued sample policies for (i) mandatory vaccination and (ii) vaccination or testing and face covering.

[6] OSHA’s guidance addresses discipline of employees who refuse to comply with mandatory vaccination policies, at FAQ. 3.H.

[7] For more about handling requests for exemptions, see our blog post here and the Equal Employment Opportunity Commission’s guidance.

[8] OSHA has published a Fact Sheet regarding penalties for False Statements and Records. Potential consequences for false representations or falsified documents include steep fines and imprisonment.

[9] OSHA addresses this issue in its FAQs at FAQ 5D.

[10] OSHA’s resources for compliance with the ETS include a link to CDC guidance on COVID testing at non-health care workplaces.

[11] A “face covering” means a covering that: (1) completely covers the nose and mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source); (3) is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; (4) fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings.

[12] OSHA has cited reliance upon its authority to preempt state and local requirements under Section 18 of the Occupational Safety and Health (OSH) Act, and from general principles of conflict preemption. Challenges to this position are underway, but employers should consider the ETS to be in full force, effective November 5, unless stayed by judicial order. We are closely monitoring developments.

[13] In the September 2021 version of the HERO Act FAQs, the state advises “Section 1 of the HERO Act also does not apply to employees covered by any other OSHA standard specifically related to airborne infectious diseases or COVID-19 in particular. Currently, OSHA does not have such a standard, but NYSDOL will update information if and when OSHA does create a standard that applies to any additional employees.”