November 7, 2021 – UPDATE: On November 6, 2021 the U.S. Court of Appeals for the Fifth Circuit temporarily stayed OSHA’s new Emergency Temporary Standard (ETS) Rule on COVID-19 vaccination and testing. A number of personnel staffing companies moved for the stay the same day the ETS was released, arguing the Rule impermissibly delegates Congress’s authority to the Executive Branch and would irreparably harm the staffing companies by exacerbating the current labor shortage. Although enforcement of the Rule is currently on hold given the stay, it may still be prudent for employers to make plans to comply with the new ETS in the meantime.

On Thursday, November 4, 2021 the Occupational Safety and Health Administration (OSHA) published a final rule for the second COVID-19 ETS detailing employee vaccination and testing mandates. The ETS requires all workers at 100+ employee companies covered by OSHA to be fully vaccinated by January 4, 2022 (60 days post publication) or undergo weekly COVID-19 testing. Further, all unvaccinated employees working in-person must begin wearing masks by December 5, 2021 (30 days post publication). Here is what employers should know about enforcing the new rule:

• What is the 100-employee threshold based on? The 100-employee threshold is based upon a companywide headcount rather than the number of employees at a particular worksite. It includes all employees regardless of full time, part time, or temporary status. Independent contractors are not counted.
• What does fully vaccinated mean? Employers need to ensure employees continue to test weekly until two (2) weeks after attaining full vaccination status. However, employers have until 60 days after publication (January 4, 2022) to comply with the testing requirement. Employees who are fully vaccinated by January 4, 2022 do not have to be tested.

In the case of a two-dose primary vaccination series (e.g. Pfizer and Moderna), an employee is considered “fully vaccinated” two (2) weeks after receiving the second dose of the series. In the case of the Johnson & Johnson vaccine, employees are considered “fully vaccinated” two (2) weeks after receiving the vaccine.

• Do I have to pay employees for time spent getting vaccinated and/or recovering from the vaccine? According to the ETS, employers must give their employees up to four hours of paid time off to receive each primary dose of a COVID-19 vaccine, and, if employees suffer side effects from the vaccine, they are entitled to an additional, reasonable amount of paid sick time to recover.
• What records do employers need to maintain regarding employee vaccination status? The ETS requires that employers establish procedures for employees to promptly report a positive COVID-19 test or positive COVID-19 diagnosis to the employer. Upon such notice, employees must be immediately removed from the workplace until return-to-work criteria from the CDC are met. Employers are required to monitor and retain records regarding the vaccination status of their employees. Acceptable proof of vaccination status includes: (a) a record of immunization from a health care provider or pharmacy; (b) a copy of the COVID-19 Vaccination Record Card; (c) a copy of immunization records from a public health, state, or tribal immunization information system; or (d) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) that administered the vaccine. If the employee is unable to produce the above forms of proof of vaccination, the employer may accept a signed and dated statement by the employee attesting to (1) their vaccination status as fully or partially vaccinated; (2) that they have lost or are otherwise unable to produce the above items of proof; (3) the best of their recollection as to the type of vaccine administered; (4) dates of vaccination; (5) the name of the entity that administered the vaccination; and (6) language certifying that their vaccine status is accurate, and that false information may be subject to criminal penalties. These records should be treated as confidential medical records.
• What information do I need to share with my employees now? The ETS requires employers to provide employees with information about the ETS, employee rights and protections, and the benefits of vaccination. Employers should develop a written policy that outlines:

1. 1. Information about the requirements of the ETS and workplace polices, and procedures established to implement the ETS;
   2. Information about protections against retaliation and discrimination;
   3. Information about laws that provide for criminal penalties for knowingly supplying false statements about documentation;
   4. The CDC Document “Key Things to Know About COVID-19 Vaccines”;
   5. Information on where and when employees can get vaccinated;
   6. Who is eligible for a testing schedule in lieu of vaccination (for example, those with a sincerely held religious belief or a qualifying disability); and
   7. How to apply for a reasonable accommodation in lieu of vaccination and engage in the interactive process.

• Can employees opt for testing instead of vaccinations? Employers may wish to offer any employee a testing schedule in lieu of vaccination, or only those with a sincerely held religious belief or those who are entitled to a reasonable accommodation resulting from a medical condition or disability. While the ETS provides for a testing schedule in lieu of mandatory vaccination, under the ETS, an employer is not absolutely required to offer a testing schedule to anyone except those who are otherwise entitled to an accommodation under the law (for example because of a sincerely held religious belief under Title VII or a disability or medical condition under the Americans with Disabilities Act [“ADA”]). An employer may terminate an employee who is not entitled to an accommodation and refuses to get vaccinated under the ETS, unless prohibited from doing so by applicable state or local law, or another contrary regime, such as a collective bargaining agreement.
• Who pays for COVID-19 testing? While the ETS does not require the employer to bear the cost of COVID-19 testing, any attempt to pass the cost of a COVID-19 test on to an employee is subject to other state and federal laws. For instance, certain states, such as Louisiana, make it illegal to pass the cost of a required medical examination onto an employee. Additionally, if an employee requests testing as a reasonable accommodation under Title VII or the ADA, it may not be permissible to pass the cost of a COVID-19 test onto that employee, depending on whether that cost would create an undue burden for the employer. Time spent getting a COVID-19 test may also be compensable for certain employees under the Fair Labor Standards Act.
  How often should unvaccinated employees be tested and what kind of testing is required? Unvaccinated employees must be tested every seven days. An approved COVID-19 test under the ETS is a test that is (i) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-COC-2 virus, (e.g., a viral test); (ii) Administered in accordance with the authorized instructions; and (iii) Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Laboratory, point-of-care, and over-the-counter tests satisfy this requirement as long as they are observed by the employer or an authorized telehealth proctor.
• What about remote workers? The ETS does not apply to workers who never come into the office. Employers may choose to use remote work as an option for unvaccinated workers.
• What about states with conflicting mandates? The ETS states that it specifically preempts any conflicting state guidance. Several states have already launched challenges to the new ETS.
• What about states with their own state OSHAs? When Federal OSHA promulgates an ETS, State Plans must either amend their standards to be identical or “at least as effective as” the new standard, or show that an existing State Plan standard covering this area is “at least as effective” as the new Federal standard. Further, State Plans must cover state and local government employees although the federal ETS does not. Thus, states with OSHA corollaries may choose to adopt more protective requirements than the ETS or an identical standard. Adoption of this ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the promulgation date of the final Federal rule, and State Plans must notify Federal OSHA of the action they will take within 15 days. The State Plan standard must remain in effect for the duration of the Federal ETS.

OSHA has stated that a State Plan standard that prohibits employers from requiring vaccination would not be at least as effective as this ETS because OSHA has recognized in the ETS that vaccination is the most protective policy choice for employers to adopt to protect their workplaces.