By Mark K. Cameron
The Occupational Safety and Health Administration (OSHA) and the Center for Medicare & Medicaid Services (CMS) released the much-awaited COVID-19 vaccination and testing requirements. OSHA released a 490-page COVID-19 vaccination and testing emergency temporary standard (ETS). This legal alert covers some of the primary questions surrounding the new ETS. For further questions and help understanding and complying with the new rule, please contact our office.
1. When does the ETS take effect?
Although a public comment period is required for the new ETS to be made permanent, the temporary ETS takes effect November 5, 2021.
2. What does the ETS require?
Generally, the ETS requires that all covered employers ensure its employees are either fully vaccinated against COVID-19 or are tested on at least a weekly basis. Non-vaccinated employees are also required to continue wearing face coverings under the ETS. See below for more details on the testing requirements.
The ETS has several other requirements that employers must observe when implementing and administering the vaccine mandate. For example, if vaccines are mandatory, you must have a written policy that contains very specific elements set out in the ETS. Unsurprisingly, it also requires unvaccinated employees to wear a face covering unless they are alone, in an enclosed room, eating or drinking (briefly), for identification purposes (briefly), the covering creates a hazard or the employee is wearing a respirator.
3. When must Employers come into compliance with the ETS?
By January 4, 2022 employers must ensure that all employees are either vaccinated or being tested weekly for COVID-19. By December 5, 2021 employers must come into compliance with all other requirements, such as developing a vaccine policy, providing support for employee vaccination, and ensuring employees who are not fully vaccinated wear face coverings.
4. Who is covered by the ETS?
ETS applies to employers with 100 or more employees. This means that any employers “that have a total of at least 100 employees at any time the ETS is in effect” are subject to its requirements. All employees at all locations are counted for purposes of the 100-employee threshold. While this ETS only covers larger employers, OSHA indicates in the ETS that it is considering whether to adjust the scope in the future to address smaller employers. Medical Health Facilities not covered by the CMS Mandate—medical health facilities who are exempt from the CMS rule, but have more than 100 employees, are covered by the OSHA ETS.
The ETS also provides helpful examples for employers who may have multiple worksites or unique employment situations. If you are curious whether your business falls under this new rule, please reach out to one of our attorneys to discuss.
5. Who is not covered by the ETS?
- Employees who do not report to a workplace where other individuals such as coworkers or customers are present;
- Employees who work exclusively from home;
- Employees who work exclusively outdoors;
- Employees with Medical contraindications, medical necessity requiring delay in vaccination, or reasonable, accommodations for workers with disabilities or sincerely held religious beliefs
- Employers who are already covered by the Federal Contractor Vaccine Rule;
- Healthcare facilities that are already covered by the CMS Rule.
6. What if my business is also considered a federal contractor or health care facility?
The ETS does not apply if you are already covered by the federal contractor mandate or the CMS health care facility mandate. It may apply to employees and worksites that are not covered by the federal contractor mandate, however. This may not be an employer-wide exemption for all employees.
7. Are Employers required to provide paid leave to employees to get vaccinated?
Yes. Employers must provide reasonable time and up to four hours of paid leave for the employee to get fully vaccinated. Additionally, the employer must provide reasonable time and paid sick leave for any leave necessary for vaccine related side effects. The employer may require the employee to use his or her accrued sick leave, but cannot require that the employee borrow against future sick leave or that he or she use accrued vacation time.
8. Are Employers required to provide paid time off for COVID-19 testing?
No. The ETS does not require employers to provide employees paid time off for testing. However, the Fair Labor Standards Act may require that the employer pay the employee for the time it takes to get tested each week. This is a close question that will require you to consult counsel about the specifics of testing for employees who refuse to get vaccinated.
9. How often is testing required?
The ETS provides two testing frequencies based on the employee’s work schedule. First, an Employee who reports at least once every seven days to a workplace where other individuals are present must be tested at least once every seven days. The test result must be provided within seven days from the last provided test result. On the other hand, an employee who reports less than once every seven days must be tested within seven days prior to returning to the workplace. Such employee must provide his or her result to the employer upon returning to the workplace.
10. Who pays for testing?
The ETS does not require the employer to pay for testing, but notes that you may have to if other laws require it. For example, Ark. Code Ann. § 11-3-203 requires employers to pay for all medical tests that are a condition of employment. The FLSA may require an employer to pay if the cost of the test would take the employee below minimum wage that week.
11. What does the ETS require an Employer to do if someone tests positive?
First, the employer’s policy should require that employees immediately notify the employer of a positive test. Next, the employee must be immediately removed from the workplace. Finally, the employee cannot return until he or she either receives a negative NAAT confirmatory test, meets the CDC guidance for isolation after a positive test, or receives a recommendation to return to work from a licensed healthcare provider. After testing positive, the employer must not subject the employee to testing for 90 days from the date of the positive test.
This brief analysis of the new OSHA ETS is not meant to be comprehensive. Rather, it is a starting point for employers to begin understanding their new obligations under the ETS. We strongly encourage any employers covered by this ETS to reach out to our office with any questions. Our experienced labor and employment attorneys regularly assist clients with compliance related matters.
Mark K. Cameron is an associate in the Labor and Employment Practice Group at Friday, Eldredge & Clark, LLP. His practice is focused on representing employers in litigation matters involving discrimination and Fair Labor Standards Act claims. He also works with non-profits on employment-related issues.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.