On November 4, 2021, OSHA issued an emergency temporary standard (ETS) mandating that private employers with 100 or more employees require employees to be vaccinated against COVID-19 or submit to weekly testing and to wear masks in the workplace. According to the ETS, covered employers must ensure that all unvaccinated workers begin wearing masks by December 5, 2021, and provide a negative COVID-19 test on a weekly basis beginning on January 4, 2022.

 The ETS is currently blocked from going into effect by a court-imposed stay and OSHA has now announced that it will delay implementation of the ETS until the courts have ruled on its legality. Employers are, nevertheless, advised to become familiar with the ETS’s fundamental requirements and to remain prepared to take appropriate steps towards implementation.

          A.          COVERED EMPLOYERS

The ETS applies to all private employers with 100 or more total employees at any time the ETS is in effect.  Full-time, part-time, and temporary workers are included in the count. Independent Contractors and leased employees are not included.

Nor does the ETS apply to: (i) workplaces covered under the Safer Federal Workforces Task Force Covid-19 Workforce Safety: Guidance for Federal Contractors and Subcontractors; (ii) employers mandated to comply with the Healthcare ETS; (iii) employees who work remotely; and (iv) employees who work exclusively outdoors.

          B.          SPECIFIC REQUIREMENTS FOR COVERED EMPLOYERS

The ETS requirements are considerable, including a record-keeping component. The OSHA directive mandates that covered employers take the following affirmative action:

-          Implement a mandatory COVID-19 vaccination policy, with or without an exception allowing employees to undergo weekly COVID-19 testing and wear a face mask while at work.

-          Obtain and maintain acceptable proof of vaccinations from employees and maintain a list of employees showing the vaccination status of each employee.

-          Provide employees with up to four hours of paid time off, during normal work hours, to receive each primary vaccination dose, as well as a reasonable amount of paid sick leave to recover from any vaccine side effects.

-          Ensure that each employee who is not fully vaccinated is tested for COVID-19 by a licensed health care provider on a weekly basis and wears a mask while in the workplace.

-          Communicate, in a manner that each employee can understand, information about the ETS requirement, the workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know about COVID-19 Vaccines;” information about protections from retaliation and discrimination; and information about laws that provide criminal penalties for knowingly supplying false statements or documentation.

          C.          TESTING UNVACCINATED EMPLOYEES

Under the ETS, a COVID-19 test must be a test for SARS-CoV-2 that is: (1) cleared, approved, or authorized, by the U.S. Food and Drug Administration to detect current infection with the SARS-CoV-2 virus; (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Over-the-counter self-testing kits are allowed, provided they are not self-administered and self-read.

The ETS does not require employers to pay for or provide testing to workers who decline the vaccine. However, reimbursement for testing may be required under applicable state laws governing the reimbursement of necessary business expenses.

          D.          PENALTIES FOR NONCOMPLIANCE

      The ETS provides that OSHA may separately cite employers for each instance the employer failed to protect employees and for each affected employee. Penalties characterized as serious in nature can be high as approximately $14,000 per violation. Depending on the nature of the violations, the citations could be classified as “willful” or “egregious,” which would result in a higher penalty amount.

      To avoid penalties, employers should first determine whether to mandate vaccinations or allow employees to choose a weekly testing option. A clear and comprehensive policy should then be drafted and adopted which addresses each of the ETS requirements, including the practice requirements, the record retention requirements, and the requisite pay practices. A sample policy is available on OSHA’s website. 

If you have any questions about the ETS, how it would impact your business, or the status of the court decision currently blocking its enforceability, please contact our employment lawyers, Kerry E. Saltzman (saltzman @wbs-law.com) or Patrick M. Spellman (spellman@ wbs-law.com).