Employers with 100 or more employees should expect a new emergency temporary standard (ETS) from the Occupational Safety and Health Administration (OSHA) requiring them to mandate that all employees be vaccinated against COVID-19 or else undergo weekly testing. News of this planned ETS came on September 9, 2021 from President Biden. His new COVID-19 Action Plan explains in relevant part:

Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The New ETS

This new ETS will supplement the ETS that OSHA adopted last June, 29 C.F.R. Part 1910, Subpart U, 86 Fed. Reg. 32376 (June 21, 2021). That ETS only applies to the healthcare sector. As explained in our alert on that ETS, the key requirements for an ETS are that OSHA “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” OSH Act § 6(c)(1), 29 U.S.C. § 655(c)(1). Despite pressure from unions to apply that ETS to all workplaces, OSHA limited its applicability to the healthcare sector, presumably because it was concerned that it could not meet the “grave danger” and “necessary” criteria for a broader standard in light of accelerating vaccinations. 

Now, President Biden has effectively reversed that decision. By directing OSHA to adopt a broadly applicable ETS requiring vaccination or testing, he has determined that the danger from unvaccinated workers is “grave” and that mandatory requirements – not just encouragement – are “necessary” to protect all workers from COVID-19. Some states, employers, or trade associations may challenge the ETS in court on those grounds. In defending its ETS, OSHA is likely to cite the rising infection rates, particularly among unvaccinated persons; the high transmissibility of the delta variant; and resistance to receiving the vaccine.

The announcement may have come as a surprise to OSHA. According to Ann Rosenthal, Senior Advisor at OSHA, during a September 10 conference call, the ETS will be published “in the coming weeks,” with no indication of how many weeks that will be. She said that OSHA encourages employers to implement vaccination and testing programs now, in advance of the ETS, so as to protect employees and others and to make the employer better positioned to comply with the ETS once it becomes mandatory. The new standard can be expected to take effect shortly after its publication in the Federal Register. The healthcare ETS has some provisions that became mandatory 15 days after publication, while compliance with others was required a month after publication. 29 C.F.R. § 1910.502(s)(2). The new ETS is likely to phase in its requirements as well.

The 100-employee trigger for coverage of the ETS will apply on a company-wide basis, rather than on the number of employees at a particular site, according to Ann Rosenthal.  She said that OSHA encourages smaller employers to follow CDC guidance. She noted that U.S. Postal Service employees will be subject to the ETS.

Twenty-one states and Puerto Rico have state plans covering private employers, meaning that federal OSHA standards do not apply there. They will have to adopt their own ETSs on vaccination and testing. Those state ETSs must be at least as effective in providing safe and healthful employment and places of employment as the OSHA ETS, but need not be identical. State-plan jurisdictions must adopt an ETS within 30 days of publication of the OSHA ETS, to remain in effect for the duration of the OSHA ETS, unless they already have a standard that is at least as effective. 29 C.F.R. § 1953.5(b)(1).

Violations of the new ETS would be likely be considered either “serious” or “willful.” The current maximum penalty for a “serious” violation is $13,653 per violation. The current maximum penalty for a “willful” violation is $136,532. 29 C.F.R. § 1903.15(d), 86 Fed. Reg. 2964 (Jan. 14, 2021).

OSHA will not provide an opportunity to comment on the ETS prior to its publication as a rule, but the ETS preamble will solicit comments. Ann Rosenthal added that the ETS will not address employer disciplinary programs or affect collective bargaining agreements.

Vaccination

OSHA has previously considered requiring vaccinations, but decided against doing so. The OSHA bloodborne pathogens standard requires covered employers to make hepatitis B vaccination “available” to all employees who may have occupational exposure “at no cost to the employee.” 29 C.F.R. § 1910.1030(f). There, OSHA opted for a voluntary vaccination program, while asserting that it “may” have authority to require vaccinations:

After reviewing the record, and considering all the above comments OSHA concludes that a voluntary vaccination program is the best approach to foster greater employee cooperation and trust in the system. While the Agency may have the legal authority to require vaccinations as part of the standard, it recognizes that voluntary participation by employees enhances compliance while respecting individuals’ beliefs and rights to privacy. Accordingly, OSHA has chosen to require employers to offer Hepatitis B vaccination, but to make participation in the program voluntary.

56 Fed. Reg. 64004, 64155 (Dec. 6, 1991). With the new ETS, OSHA plans to offer testing as an alternative to vaccination, so as to accommodate “individuals’ beliefs and rights to privacy.”

The ETS will address what evidence of vaccination, if any, is required, Ann Rosenthal said. President Biden’s COVID-19 Action Plan says that the ETS will require all employers with 100 or more employees to ensure their workforce is “fully” vaccinated or be tested.

The ETS will have protections for employees who are unable to be vaccinated due to medical or religious reasons, according to James Frederick, Acting Administrator of OSHA, on the September 10 conference call.

The healthcare ETS may be instructive on exemptions from vaccination requirements in the new ETS. A note to 29 C.F.R. § 1910.502(a)(2) provides:

Under various anti-discrimination laws, workers who cannot be vaccinated because of medical conditions, such as allergies to vaccine ingredients, or certain religious beliefs may ask for a reasonable accommodation from their employer. Accordingly, where an employer reasonably accommodates an employee who is unable to be vaccinated in a manner that does not expose the employee to COVID-19 hazards (e.g., telework, working in isolation), that employer may be within the scope exemption in paragraphs (a)(2)(iv) and (v) of this section.

Ann Rosenthal indicated that the ETS will clarify whether employees would be considered “vaccinated” for purposes of the rule if they have only received one dose of a two-dose regimen. 

As stated by President Biden, the ETS apparently will allow employers to permit unvaccinated employees to be tested weekly instead of being vaccinated.  According to James Frederick, however, employers will have the option of requiring all employees to be vaccinated unless they qualify for an exemption. 

OSHA has previously indicated that reactions to a COVID-19 vaccination are not recordable under 29 C.F.R. Part 1904, at least for now:

OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination at least through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.

The healthcare ETS requires employers to provide reasonable paid time off for employee vaccination and possible side effects:

The employer must support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.

29 C.F.R. § 1910.502(m). The new ETS is expected to include similar a requirement. The COVID-19 Action Plan states:

To continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.

President Biden’s September 9 remarks asserted:

The Department of Labor will require employers with 100 or more workers to give those workers paid time off to get vaccinated. No one should lose pay in order to get vaccinated or take a loved one to get vaccinated.

James Frederick indicated that the ETS will allow employers to have employees use their allocated paid (or personal) time off (PTO) for vaccinations and recovery from vaccinations.

Testing

The ETS will specify whether the employer must pay for testing, according to Ann Rosenthal. 

The White House announcement included the following statements about testing and test kit availability:

As part of our strategy to ensure the most convenient access to free testing, we will expand the number of retail pharmacy sites around the country where anyone can get tested for free through the HHS free testing program to 10,000 pharmacies.

To improve access to rapid tests for all consumers, top retailers that sell at-home, rapid COVID-19 tests—Walmart, Amazon, and Kroger—will offer to sell those tests at-cost for the next three months. This means that Americans will be able to buy these tests at their local retailers or online for up to 35 percent less starting by the end of this week. The Administration has also taken action so that Medicaid must cover at-home tests for free for beneficiaries, and that states should ensure that any tools they use to manage at-home testing do not establish arbitrary barriers for people seeking care.

President Biden’s plan will mobilize industry due to the urgent and compelling need to accelerate the production of rapid COVID-19 tests, including at-home tests, and continue to ensure that manufacturers prioritize creating these products to prevent the spread of COVID-19 and its variants. Using authorities of the Defense Production Act and through the procurement of nearly $2 billion in rapid point-of-care and over-the-counter at-home COVID tests—280 million tests in all—from multiple COVID-19 test manufacturers, the Administration will ensure a broad, sustained industrial capacity for COVID-19 test manufacturing. These tests will be available to support a range of needs, including long-term care facilities, community testing sites, critical infrastructure, shelters serving individuals experiencing homelessness, prisons, and jails, and other vulnerable populations and congregate settings. Further, the action announced today will provide for tests for use by communities, adequate stockpiles, and the needed sustained production to be able to surge additional manufacturing, should we need it in the future.

What to Do Now

While the detailed requirements of the OSHA and state ETSs will not be immediately available, employers should already be considering how they will meet the ETS requirements once compliance becomes mandatory. Among the considerations employers should address are these:

• Whether the ETS applies to their workplaces.

• How to deal with remote workers.

• How to coordinate with onsite contractors about compliance, particularly those with fewer than 100 employees.

• How to identify vaccinated and unvaccinated employees, and how to update that information.

• How employees are to report the results of testing.

• Whether to require proof of vaccination, and if so, what proof to require.

• Whether to sponsor on-site vaccination clinics.

• Whether to sponsor on-site testing.

• Whether to supply test kits, and if so, how to obtain them; and if not, how to instruct employees about obtaining test kits.

• Whether to pay for test kits, and if so, how to do so.

• How to provide paid time off for vaccination and recovery.

• How to deal with employees who refuse both vaccination and testing.

• How to keep records supporting compliance, keeping in mind that the standard on access to employee exposure and medical records, 29 C.F.R. § 1910.1020, may apply to some records. 

In addition, employers should continue to consider OSHA’s guidance (updated August 13, 2021) on other aspects of protecting workers from COVID-19. That guidance, and relevant CDC guidance, is summarized in our previous alert. As applicable, employers should also consider the September 9, 2021 Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors and a related White House blog. Ann Rosenthal said that nothing in the ETS and the federal contractor requirements would be inconsistent.