By Brad Young
Harris Dowell Fisher & Young L.C.
Email: byoung@hdfh.com
November 5, 2021- Yesterday, OSHA issued the Emergency Temporary Standard (ETS), requiring that businesses with 100 or more employees either require all employees to be vaccinated against COVID-19 or adopt a policy requiring unvaccinated employees to wear face masks and submit to weekly virus testing. Employers must comply with most of the order within 30 days (December 5, 2021), although they have an additional month (January 4, 2021) to implement the testing requirements.
The language of the new standard tracks the statutory requirements for an ETS, which bypasses the usual rule making process, allowing OSHA to impose regulations that take effect immediately. OSHA's determination that COVID-19 in the workplace qualifies as a "grave danger" is subject to judicial review, and so is its assertion that the specific policy it chose is "necessary" to address that danger.
The ETS includes some exceptions designed to satisfy the latter requirement. The rule does not apply to "employees who do not report to a workplace where other individuals are present," employees who are "working from home," or "employees who work exclusively outdoors."
OSHA also is allowing some leeway in the use of face masks. They are not required "when an employee is alone in a room with floor to ceiling walls and a closed door," "while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements," or "where the employer can show that the use of face coverings is infeasible or creates a greater hazard."
Still, the burdens imposed by the ETS are substantial.
Employers have to "determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status." They must give employees up to four hours of paid time off when they get their shots, plus "reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose."
Businesses are required to make sure that unvaccinated workers are tested "at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer)." They must "require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19." Employees who test positive must be removed from the workplace "immediately" and allowed to return only after they test negative, comply with isolation requirements, or present "a recommendation to return to work from a licensed healthcare provider."
OSHA says the ETS "does not require employers to pay for testing," although "employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements." If employees have to foot the bill for testing, which might amount to $150 or so a week, that cost will provide an added vaccination incentive, although that is not the official goal of requiring testing.
Employers who adopt a "mandatory vaccination policy" can comply with the ETS even if some employees are not actually vaccinated. OSHA allows the following exceptions: "those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or 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." It seems those unvaccinated employees don't have to wear masks or be tested each week, since those safeguards apply only to businesses that require employees to choose between vaccination and testing plus masking.
FORMS
Regarding the requirement that employees provide proof of vaccination and/or a COVID vaccine self-attestation, here are forms that my firm has created to fulfill this requirement:
LEGAL CHALLENGES
At least 24 State Attorneys General, including Missouri Attorney General Eric Schmitt, have announced an intent to challenge this mandate in court. Even after these legal challenges are filed, though, there is no way to predict whether a Federal Court Judge will issue a temporary restraining order (TRO) prior to the implementation deadline of December 4, 2021, if at all. As such, until we know whether a TRO will be issued, and when such a TRO would be in place, companies covered by the ETS will need to begin planning for compliance.
HERE ARE SOME LINKS TO IMPORTANT RESOURCES FROM OSHA: