By Scott Hecker, Adam Young, Noah Finkel, David Baffa, Joshua Seidman, Laura Maechtlen, Camille Olson, Kristin McGurn, Lawrence Lorber,  Brent Clark, Jim Curtis, Ben Briggs and Patrick D. Joyce

Seyfarth Synopsis: The much-anticipated OSHA Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) posted on November 4, 2021, for public inspection.

The ETS was scheduled for publication in the Federal Register on November 5, at which point it will be effective, with new obligations for employers beginning December 5, 2021, and an ultimate “vaccination or testing” deadline of January 4, 2022. This morning, the White House announced that it would also change the December vaccination deadline for covered federal contractors to align with the January 4th ETS deadline.

Now that we can review the text of the ETS, we finally have some answers to questions that have been percolating since at least September 9, 2021, when President Biden Announced his Administration’s COVID-19 Action Plan.  OSHA also released Frequently Asked Questions to guide employers with regard to the new ETS.

1. 100-Employee Coverage Threshold

The ETS requires covered employers, those with 100 or more employees, to implement a policy on vaccination ensuring their employees are fully vaccinated by January 4, 2022, subject to required accommodations.  OSHA explains in the ETS’s preamble and FAQs that “employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.  Part-time employees do count towards the company total, but independent contractors do not.”  Fully remote workers count towards the 100-employee threshold.  Corporate entities with more than one location must count “all employees at all locations . . . for purposes of the 100-employee threshold.”  Franchisors and franchisees are “separate entities for coverage purposes, such that the franchisor would only count ‘corporate’ employees.”  Despite OSHA’s suggestion that staffing agencies and host clients share some level of joint responsibility over staffing agency workers “only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS” because “the staffing agency would typically handle administrative matters for these workers.”  At multi-employer worksites, “such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees.”

2. Compliance Dates and Vaccination Requirement.

Covered employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines by January 4, 2022, or they must undergo at least weekly testing as of that date.  (Although employees are not considered “fully vaccinated” under the ETS until they are two weeks beyond the final shot, the ETS does not mandate weekly testing for those who are in their final two-week waiting period as of January 4th.)   Employers must be in compliance with the rest of the ETS’ requirements — such as masking, recordkeeping, removal of COVID-positive employees — by December 5, 2021.

To avoid the testing obligation for unvaccinated employees, the last day on which an employee may receive a one-dose vaccine (such as Johnson & Johnson) is January 4, 2022.  The ETS prescribes that employees pursuing a two-dose vaccination may not receive a second dose within fewer than 17 days of the first dose, which means the latest date for the first dose in a two-dose regimen would have to be December 18, 2021.   For employees who follow the recommended time between doses (28 days between shots for Moderna, and 21 days between shots for Pfizer-BioNTech), employees should receive the first dose of Moderna by December 7, 2021, or the first dose of Pfizer-BioNTech by December 14, 2021.

The ETS requires employers to obtain written documentation of employee vaccination, which would include an attestation stating that more formal forms of proof are unavailable.  Employers then must maintain the records and written roster of employee vaccination status.

3. Vaccination Status and Weekly Surveillance Testing

Employees who have not received their full vaccine course by the January 4, 2022 deadline must start producing verified negative tests to their employer on at least a weekly basis.  Employers must exclude from their workplaces any employee who receives a positive test result or a positive COVID-19 diagnosis.  Any unvaccinated employee must mask in the workplace, with certain designated exceptions.  Again, while employee testing need not begin until on and after January 4th, masking, leave, recordkeeping and other obligations under the ETS go into effect on December 5, 2021.

Employers must determine employees’ vaccination status, including requiring delineated types of documentation.  If an employee cannot provide one of the designated documents, an attestation meeting defined criteria is allowable.  Employers must maintain records of vaccination, including a “roster of each employee’s vaccination status,” which are subject to subject to OSHA’s medical records requirements at 29 CFR 1910.1020; however, the ETS excepts them from 1910.1020’s typical retention requirements, advising the vaccination records “must be maintained and preserved while this section remains in effect.”  29 CFR 1910.501(d)(4).  There are similar maintenance and retention requirements for employee test results.  See id. at 1910.501(g)(4).

Employers can, but are not required to allow for vaccination or testing options.  Acceptable tests under the ETS include those that are:

Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARSCoV-2 virus (e.g., a viral test);

Administered in accordance with the authorized instructions; and

Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

29 CFR 1910.501(c).

4. Employers Must Pay for the Costs of Vaccination

The ETS requires employers to give employees (a) reasonable paid time for each primary vaccination dose (i.e., up to four hours for each dose) and (b) paid sick leave for employees’ reasonable recovery time due to side effects from each primary vaccination dose.  29 CFR 1910.501(f).  Neither paid time off mandate is retroactive prior to the promulgation of the ETS.

Paid time for receiving the vaccination must be paid at an employee’s regular rate of pay.[1]  Importantly, the paid time of up to four hours for each primary vaccination dose must be provided as a standalone benefit to employees.  It cannot be offset by any other leave that an employee has accrued (e.g., paid sick leave, vacation time, PTO, etc.).  If an employee needs more than four hours to receive a primary vaccination dose, the additional time would be deemed unpaid, protected leave as long as it is reasonable.  The employee can use other leave time that they have available (e.g., sick leave or vacation time) to receive pay in these situations.

Paid sick leave for vaccination side effects also contains several unique components.  Notably, there is an offset option for employers, depending on the circumstances. If an employer offers separate buckets of paid leave to employees (e.g., paid sick leave, vacation, etc.), the employer can require the employee to use any available, accrued paid sick leave when recovering from side effects.  The employer cannot force use of vacation or personal time in these situations.   However, if the employer offers a single bucket of PTO, the employer may require employees to use that leave when recovering from vaccination side effects.

If an employee does not have available paid sick leave or PTO at the time they are experiencing vaccine side effects, the employer must provide the employee with additional paid sick leave.  In other words, the employer cannot require that the employee use advanced paid sick leave, borrow against future accruals or “go into the negative.”  The ETS indicates that the amount of paid sick leave must be “reasonable,” and OSHA presumes that if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer’s setup would be considered “reasonable.”

Other federal, state or local laws, as well as collective bargaining agreements, may mandate that employers provide additional paid time off to employees for vaccination or recovery from vaccination side effects.  Employers should examine COVID-19 paid leave mandates, non-COVID-19 general paid sick leave mandates, and other state and local time off laws when assessing their paid time off obligations related to vaccinations.

5. Employers Need Not Pay for the Costs of Testing

Generally, the ETS does not require employers to pay for the cost of COVID testing (including time spent testing), though employers are not prohibited from doing so.  While this may first read as a “win” for employers, unfortunately it does little to clarify the confusing state law matrix or collective bargaining obligations regarding employer responsibility for paying for testing costs or associated testing time.

The ETS and associated FAQs acknowledge that there may be circumstances under which employers must pay, e.g., based on “other laws, regulations, or collective bargaining agreements or other collective negotiated agreements.”  See 29 CFR 1910.501(g).  Regarding CBAs, the very first section of the ETS, 29 CFR 1910.501(a), reads that “[n]othing in this section prevents employers from agreeing with workers and their representatives to additional measures not required by this section and this section does not supplant collective bargaining agreements or other collectively negotiated agreements in effect that may have negotiated terms that exceed the requirements herein.”

Regarding potentially competing state laws, about a half-dozen jurisdictions generally require employers to reimburse employees for reasonable and necessary expenses (such as California, Illinois, Seattle), but since testing is an alternative to vaccination and arguably not “necessary,” it is just unclear how these laws may be applied.  About 22 states require employers to pay for the cost of “medical examinations,” but these are generally older laws not passed specifically in connection with COVID or COVID testing, and it is not entirely settled whether each and every type of potential COVID test would be considered a “medical examination” pursuant to these laws.  Ultimately, as the FAQs point out, the subject of payment for costs associated with testing “pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.”

With regard to the time spent to get tested, while the ETS supports the notion that employers should not have to pay for time spent testing, other laws may well bear upon the compensability of such time, particularly depending on when during a work shift testing is conducted.  Whether an employer must pay non-exempt employees for time spent on testing remains unclear and often subject to the state in which it takes place and the details of the employer’s testing program.

6. OSHA Record-keeping of COVID-19 Illnesses

The ETS reminds employers of existing record-keeping obligations as they apply to COVID-19 illnesses.  Employers must report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.  See id. at 1910.501(h). The ETS does not require employers to provide paid leave to employees missing work time due to a COVID-19 diagnosis, though other laws may mandate such leave.  See id. at 1910.501(h).

7. Employers Must Train Employees on the ETS

Employers must communicate the requirements of the ETS to their employees, in language they can understand, along with providing the document “Key Things to Know About COVID-19 Vaccines,” information on anti-retaliation, and OSH Act prohibitions against supplying false information or documentation.  See 29 CFR 1910.501(i).

8. Competing Federal Vaccine Mandates

The ETS and FAQs explains that the ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.  Nor does it apply to worksites covered by the existing healthcare ETS (29 C.F.R. 1910.502). Accordingly, the same employer could have some worksites that involve federal contracts that are covered by the federal contractor EO, and others covered by the ETS.  A health care employer similarly could operate an ambulatory care facility covered by the new ETS, and a hospital covered by the health care ETS.

The White House Fact Sheet, “Biden Administration Announces Details of Two Major Vaccination Policies,” acknowledges the competing federal COVID-19 vaccine mandates and – helpfully – tries to harmonize them:

Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries. And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

This officially pushes the federal contractor deadline back from December 8, 2021, and indicates that federal contractors who have already started implementing protocols under the Safer Federal Workforce Task Force Guidance do not have to implement the OSHA (or CMS) mandate at their covered contractor workplaces.  That is, covered contractors who already developed protocols under the “show or provide” vaccination documentation directive in the Guidance should not be subject to new OSHA recordkeeping requirements at their covered contractor workplaces.

In addition to not covering those under the umbrellas of the Task Force Guidance or CMS regulations, see 29 CFR 1910.501(b)(2), OSHA’s ETS excludes employees “[w]ho do not report to a workplace where other individuals such as coworkers or customers are present; . . . While working from home; or . . . Who work exclusively outdoors,” 29 CFR 1910.501(b)(3).

9. Challenges to Come

The Task Force Guidance clearly stated its position on preemption:

Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.

Aligned with the Task Force’s position, OSHA’s FAQs accompanying today’s ETS indicate that the:

ETS preempts States, and political subdivisions of States, 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. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing . . . .

OSHA’s authority to preempt such State and local requirements comes from section 18 of OSH Act, and from general principles of conflict preemption . . . .  [O]nce OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHA’s approval and the authority of a Federally-approved State Plan.

However, we have already seen States and others challenge President Biden’s federal contractor COVID-19 vaccine mandate, and we anticipate prompt litigation over the ETS once it is officially published in the Federal Register and, therefore, in effect.  Indeed, 24 State attorneys general foreshadowed their legal arguments in a September 16, 2021 letter to President Biden.

To navigate your various obligations under the multiple federal vaccine mandates and to assist in understanding the impacts of these anticipated legal challenges, we recommend that you reach out to your Seyfarth attorney.  As you know, analyzing the nuances of and interactions among your myriad requirements is complicated, and we are here to help.  Reach out to your Seyfarth attorney with any questions.

 

[1] By comparison, the ETS does not include a specific rate of pay that employers must use for vaccine side effect paid sick leave.