On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA), an agency of the U.S. Department of Labor, issued an emergency temporary standard (ETS) that memorializes and formalizes President Biden’s prior directive that all U.S. employers with 100 or more employees must require their workers to be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing.
The below FAQs, compliments of Reed Smith, address some of the more salient questions surrounding the ETS.
There are undeniably more questions than answers at present with respect to the ETS. Therefore, before taking any material workplace action with respect to the ETS, please consult with a Reed Smith employment lawyer. The information contained in this article is current as of November 4, 2021. Please note that this is not legal advice.
Q: To which entities does the ETS apply?
A: Generally speaking, the ETS applies to all U.S. employers that employ 100 or more employees at any time while the ETS is in effect.
Q: Are there any workplaces or employees to which the ETS does not apply?
A: Yes. The ETS does not apply to the following:
- Employers that, at all times while the ETS is in effect, employ less than 100 U.S. employees
- Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
- Certain settings where any employee provides health care services or health care support services
- Employees of covered employers:
- Who do not report to a workplace where other individuals, such as co-workers or customers, are present
- While working remotely from home
- Who work exclusively outdoors Q: Do employees outside the United States count toward the 100-employee threshold?
Q: Do employees who work remotely count toward the 100-employee threshold?
A: Yes, remote employees count toward the 100-employee threshold. However, as noted above, employees are not subject to the requirements of the ETS while working remotely from home.
Q: Do part-time employees and/or independent contractors count toward the 100-employee threshold?
A: Part-time employees count toward the threshold, but independent contractors do not.
Q: Is the 100-employee threshold calculated on a per-location basis or is it based on the total number of employees across all U.S. locations?
A: The applicability of this ETS is based on the size of an employer in terms of the total number of U.S. employees rather than on the type or number of workplaces. As OSHA explains, “[i]n determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.” An employer with two U.S. locations of 60 employees each (i.e., 120 employees in total), therefore, would be covered by the ETS.
Q: How is the 100-employee threshold calculated for separate but related corporate entities?
A: The ETS itself does not clarify whether separate but related entities that have their own distinct employee headcounts, need to aggregate those headcounts for purposes of the ETS’s 100-employee threshold. OSHA does note, however, that “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.”
Having said that, the ETS does provide detailed guidance on this issue for franchisor-franchisee relationships and businesses that utilize temporary staffing agencies, as follows:
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, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.
In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. Although the staffing agency and the host employer would normally share responsibility for these workers under the OSH Act, this ETS raises unique concerns in that OSHA has set the threshold for coverage based primarily on administrative capacity for purposes of protecting workers as quickly as possible . . . and the staffing agency would typically handle administrative matters for these workers. Thus, for purposes of the 100-employee threshold, only the staffing agency would count the jointly employed employees. The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency. For enforcement purposes, traditional joint employer principles would apply where both employers are covered by the ETS. . . . See also https://www.osha.gov/temporaryworkers/.
Q: Does the ETS provide any other examples of how to calculate the 100-employee threshold?
A: Yes. On this point, the ETS first notes that the determination as to whether a particular employer is covered by the standard should be made separately from whether individual employees are covered by the standard’s requirements (e.g., some employers may be covered but have no duties with respect to some of their employees under this standard). Some examples from the ETS include:
- If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
- If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
- If an employer has 102 employees and only three ever report to an office location, that employer would be covered.
- If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would fall within the scope.
- If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
- If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
- If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
- If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer would be covered under this ETS and the staffing agency would not be covered.
- If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency would be covered under this standard, and traditional joint employer principles would apply.
- Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.
Q: What time frame should employers use in calculating the 100-employee threshold?
A: The ETS expressly states that it “covers all employers with a total of 100 or more employees at any time [it] is in effect.” (Emphasis added.) This means that employers who meet this minimum threshold as of the effective date of the ETS are covered throughout the effective time of the ETS, even if the employer later falls under the minimum employee threshold. This also means that employers that fall short of 100 employees as of the ETS’s effective date but reach the threshold at any point that the ETS is in effect would become subject to the ETS requirements as of the date they meet this threshold, and they would remain covered for the duration of the ETS, even if the employer later reduces its workforce to less than 100 employees.
Q: What policy does the ETS require covered employers to adopt?
A: The ETS requires that all covered employers adopt a written workplace vaccination policy. However, it effectively gives employers two different options from which to choose in this regard.
The first option, for which OSHA expresses a clear preference for employers to adopt, is for covered employers to establish, implement, and enforce a written mandatory vaccination policy, which the ETS defines as follows:
An employer policy requiring each employee to be fully vaccinated. To meet this definition, the policy must require: vaccination of all employees, including vaccination of all new employees as soon as practicable, other than those employees
- For whom a vaccine is medically contraindicated;
- For whom medical necessity requires a delay in vaccination; or
- Who are 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.
The second option permits covered employers, in lieu of a mandatory vaccination policy as described above, to instead establish, implement, and enforce a written policy allowing employees to choose to (i) be fully vaccinated against COVID-19 or (ii) provide proof of regular testing for COVID-19 (discussed in more detail below) and wear a face covering in the workplace.
Q: If employers elect to adopt the first option – i.e., a mandatory vaccination policy – can employees request reasonable accommodations with respect to such policy?
A: Yes. Employees may be entitled to reasonable accommodations for disabilities or sincerely held religious beliefs if the employer elects to adopt a mandatory vaccination policy, so long as the accommodation does not impose an undue hardship on the employer. In this regard, the ETS notes that:
Under federal law, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, workers may be entitled to a reasonable accommodation from their employer, absent undue hardship. If the worker requesting a reasonable accommodation cannot be vaccinated and/or wear a face covering because of a disability, as defined by the ADA, the worker may be entitled to a reasonable accommodation. In addition, if the vaccination, and/or testing for COVID-19, and/or wearing a face covering conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. For more information about evaluating requests for reasonable accommodation for disability or sincerely held religious belief, employers should consult the Equal Employment Opportunity Commission’s regulations, guidance, and technical assistance .
Q: If employers elect to adopt the second option – i.e., allowing employees to choose between vaccination and testing what are the specific testing requirements for employees who opt for the testing route?
A: Under these circumstances, the employer must ensure that each employee who is not fully vaccinated complies with one of the following requirements:
- An employee who reports at least once every seven days to a workplace where other individuals, such as co-workers or customers, are present:
- Must be tested for COVID-19 at least every seven days
- Must provide documentation of their most recent COVID-19 test result to the employer by no later than the seventh day following the date on which the employee last provided a test result
- An employee who does not report during a period of seven or more days to a workplace where other individuals, such as co-workers or customers, are present (e.g., if the employee is working remotely for two weeks prior to reporting to a workplace with others):
- Must be tested for COVID-19 within seven days prior to returning to the workplace
- Must provide documentation of that test result to the employer upon return
Q: What does an employer need to do if an employee fails to provide documentation of the COVID-19 test result referenced in the preceding FAQ?
A: If an employee does not provide documentation of a COVID-19 test result as required by the ETS, the employer must keep that employee removed from the workplace until the employee provides a negative test result.
On a related point, the employer must maintain a record of each test result provided by each employee under the ETS. These records “are considered to be employee medical records and must be maintained as [confidential] and must not be disclosed except as required or authorized by this section or other federal law.” Notably, however, these records are not subject to OSHA’s lengthy retention requirements under 29 CFR 1910.1020 of employment plus 30 years.
Q: Do the testing requirements referenced in the two preceding FAQs apply to employees who test positive for COVID19?
A: No. When an employee has received a positive COVID-19 test result, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer cannot require that employee to undergo COVID-19 testing as required under the ETS for 90 days following the date of their positive test or diagnosis.
Q: Does the ETS require employers to pay for the testing referenced in the three preceding FAQs?
A: No. The ETS does not require employers to pay for any cost associated with testing, but it does caution that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.”
Q: I understand that, if employers elect to adopt the approach that allows employees to choose between vaccination and testing, employees who are not fully vaccinated must wear a face covering in the workplace. Are there any exceptions to this?
A: The ETS requires that employers ensure that all employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except under the following circumstances:
- When an employee is alone in a room with floor to ceiling walls and a closed door.
- For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
- When an employee is wearing a respirator or facemask, the latter of which the ETS defines as a “surgical, medical procedure, dental, or isolation mask that is FDA-cleared, authorized by an FDA EUA, or offered or distributed as described in an FDA enforcement policy. Facemasks may also be referred to as ’medical procedure masks.’”
- Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
Q: Does the ETS require employers to pay for the face coverings referenced in the preceding FAQ?
A: No. The ETS does not require employers to pay for any cost associated with face covering, but it does caution that “employer payment for face coverings may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.”
Q: How do employers determine an employee’s vaccination status for purposes of the ETS?
A: The ETS requires employers to determine the vaccination status of each of their employees, including whether each employee is fully vaccinated. In particular, the ETS provides that “[t]he employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.” Acceptable forms of proof include a copy of the COVID-19 Vaccination Record Card and a record of immunization from a health care provider or pharmacy, among other things.
In instances where an employee is unable to produce acceptable proof of vaccination, the employee must submit a signed and dated statement attesting to their vaccination status and other information required by the ETS. An employee who does not submit acceptable proof of vaccination, or the requisite attestation, is to be treated as not fully vaccinated for purposes of the ETS.
Q: Do employers need to maintain a record of their employees’ vaccination status?
A: Yes. The ETS provides that “[t]he employer must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. The employer must maintain a roster of each employee’s vaccination status. These records and roster “are considered to be employee medical records and must be maintained as [confidential] and must not be disclosed except as required or authorized by this section or other federal law.” Notably, however, these records are not subject to OSHA’s lengthy retention requirements under 29 CFR 1910.1020 of employment plus 30 years.
Q: What if an employer ascertained an employee’s vaccination status prior to the ETS taking effect? Do we need to ascertain the employee’s vaccination status again?
A: When an employer has ascertained an employee’s vaccination status prior to the effective date of the ETS through another form of attestation or proof, and retained records of that ascertainment, this is sufficient for purposes of the ETS and the employer does not need to ascertain the employee’s vaccination status again.
Q: Do employers need to provide employees with paid time off to get the vaccine?
A: Yes. The ETS requires employers to provide (i) a “reasonable amount of time” to each employee to obtain each of their primary vaccination dose(s) and (ii) up to four hours of paid time, including travel time, at the employee’s regular rate of pay for this purpose.
Q: Do employers need to provide employees with paid time off to recover from side effects experienced following receipt of a dose of the vaccine?
A: Yes. The ETS requires employers to provide “reasonable time and paid sick leave” to recover from any side effects experienced following receipt of a dose of the vaccine.
Q: Does the ETS impose any notice requirements on employers?
A: Yes. The ETS requires that employers inform their employees, in a language and at a literacy level the employees understand, about:
- The requirements of the ETS as well as any employer policies and procedures established to implement the ETS;
- COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines” (available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html).
- The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, this section. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.
- The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation.
Q: Does the ETS impose any notice requirements on employees?
A: Yes. The ETS provides that, regardless of COVID-19 vaccination status or any COVID-19 testing required under the ETS, all covered employees must promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider.
Q: What should an employer do if an employee provides notice of a positive COVID-19 test or diagnosis?
A: The ETS provides that employers must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee:
- Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing
- Meets the return to work criteria in CDC’s “Isolation Guidance”
- Receives a recommendation to return to work from a licensed healthcare provider
Notably, however, the ETS does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19 (although paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements).
Q: Does the ETS impose any reporting requirements on employers?
A: Yes. Under the ETS, employers must report to OSHA (i) each work-related COVID-19 fatality within eight hours of the employer learning about the fatality and (ii) each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
Q: Does the ETS preempt inconsistent state and/or local requirements?
A: Yes. The ETS expressly states that it “preempt[s] inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.” Based on the background information provided throughout the ETS, OSHA clearly intends for courts to interpret this language quite broadly – i.e., in favor of preemption – if and when a legal preemption challenge is raised.
Q: Does the ETS supplant collective bargaining agreements?
A: No. The ETS expressly states that it “does not supplant collective bargaining agreements or other collectively negotiated agreements in effect that may have negotiated terms that exceed the requirements herein.”
- Q: Does the ETS apply to federal contractors who are required to adopt a mandatory vaccination policy under President Biden’s other recent executive order?
A: No, in most cases. The ETS explains that:
Under paragraph (b)(2)(i), this ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (see Safer Federal Workforce Task Force, September 24, 2021). With limited exceptions, such as where a medical contraindication, disability, or sincerely held religious belief would prevent an employee from complying with certain provisions, those guidelines require covered contractors to ensure that all covered contractor employees (1) are fully vaccinated by December 8, 2021; (2) follow CDC guidelines for masks and physical distancing, including masking and distancing requirements based on the employee’s vaccination status and the level of community transmission of COVID-19 where the workplace is located; and (3) designate a person to coordinate COVID-19 workplace safety efforts at covered workplaces. Because covered contractor employees are already covered by the protections in those guidelines, OSHA has determined that complying with this standard in addition to the federal contractor guidelines is not necessary to protect covered contractor employees from a grave danger posed by COVID-19.
Q: When are employees considered fully vaccinated for purposes of the ETS?
A: Generally speaking, two weeks after receiving the lone dose of a single-dose COVID-19 vaccine or the second dose of a two-dose COVID-19 vaccine. The ETS also notes that, for an employee to be considered fully vaccinated, the second dose of any two-dose COVID-19 vaccine series must be received by the employee at least 17 days (21 days with a four-day grace period) after the first dose.
Q: Can employers adopt policies that exceed the minimum requirements set by the ETS?
Q: What is the deadline for compliance with the ETS?
A: U.S. employers who are covered by the ETS must comply by December 5, 2021, except with respect to the testing requirements. The deadline for compliance with the testing requirements for employees who are not fully vaccinated is January 4, 2022.
Q: For how long will the ETS remain in effect?
A: Under the Occupational Safety and Health Act (OSH Act), an ETS serves as a proposal for a permanent standard, and the Act calls for the permanent standard to be finalized within six months after publication of the ETS.
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