OSHA ETS Vaccine Mandate Back In Effect (For Now)

Mere moments after we published our most recent client alert, E.L.F. on a Digital Shelf: Employment Law Facts, a Summary of California’s New 2022 Employment Laws, on December 17, 2021, the Sixth Circuit Court of Appeals lifted the nationwide stay on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to require vaccination or weekly testing. 

OSHA said on December 17, 2021 that it will delay enforcement action until January 10 for all requirements except testing, and delay enforcement action until February 9 for testing requirements.  Current requirements and details of the ETS are set forth below.

While the ETS is effective now, there is still uncertainty around it.  As the comment period on the ETS has been extended until January 19, 2022, it is possible that OSHA may make amendments to the ETS before it starts enforcement.  Also, multiple petitions for review of the court’s order lifting the stay have already been filed with the Supreme Court of the United States.  However, the ETS is effective unless or until the Supreme Court, or some other potential legal challenge, results in another stay.

Employers covered by the ETS must still provide reasonable accommodations based on sincerely held religious beliefs or qualifying medical conditions. We discussed this in more detail in the alert published on December 17, 2021.

The ETS’s Requirements for Covered Employers

The ETS requires private employers with 100 or more employees firm- or corporate-wide (who are not separately covered federal contractors or healthcare services) to do the following: 

A. Develop, implement, and enforce a mandatory COVID-19 vaccination policy.  As part of the policy, employers may choose to require employees who are not fully vaccinated to undergo weekly COVID testing and wear a face covering while at the workplace in lieu of vaccination.

1. OSHA has developed policy templates.  However, employers need to keep in mind that any policies will also need to comply with any applicable state and local laws, orders, and regulations which are more stringent. 

B. Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. Acceptable proof of vaccination status includes:

1. The record of immunization from a healthcare provider or pharmacy;
2. A copy of the COVID-19 Vaccination Record Card;
3. A copy of medical records documenting the vaccination;
4. A copy of immunization records from a public health, state, or tribal immunization information system; or
5. 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) administering the vaccine(s).
6. Where an employee is unable to produce acceptable proof of vaccination (as outlined above), a signed and dated statement by the employee:
   • Attesting to their vaccination status (fully vaccinated or partially vaccinated);
   • Attesting that they have lost and are otherwise unable to produce proof required by this section; and
   • Including the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
   • An employee who attests to their vaccination status, to the best of their recollection, should include the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

C. Support vaccination by providing employees reasonable time, including up to four (4) hours of paid time off to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.

1. The ETS does not set a specific amount of “reasonable time and paid sick leave” an employer must provide for employees to recover from side effects of vaccination.  However, OSHA states in an FAQ that it will “presume” the employer is compliant if they make available up to two days of paid sick leave per vaccination dose for side effects.

D. Ensure that each employee who is not fully vaccinated is tested for COVID at least weekly (if the employee is in the workplace at least once a week) or within seven (7) days before returning to work (if the employee is away from the workplace for a week or longer).

1. Under the ETS, employers are not required to pay for any costs associated with testing.  However, other laws, regulations, or collective bargaining agreements may require it.  For example, in California employers who require testing are required to pay for the tests and the time taken to travel to and be tested.

E. Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.  Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering, unless it creates a serious workplace hazard (e.g., by interfering with the safe operation of equipment).

1. State or local laws, regulations or collective bargaining agreements may require face coverings indoors regardless of vaccination status.  For example, California and Los Angeles currently require face coverings be worn indoors regardless of vaccination status: 

F. Provide employees the following, in a language and at a literacy level the employees understand:

1. Information about the requirements of the ETS and workplace policies and procedures established by the employer to comply with the ETS;
2. The CDC document entitled “Key Things to Know About COVID-19 Vaccines”;
3. Information about protections against retaliation and discrimination; and
4. Information about laws that provide for criminal penalties for knowingly supplying statements or documents (e.g., falsified vaccination records).

G. Report work-related COVID fatalities to OSHA within eight (8) hours of learning about them, and work-related COVID in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.  (This is in addition to any reporting requirements under applicable state or local laws.)

H. Make available for examination and copying an employee’s COVID vaccine documentation and any COVID test results to the respective employee and anyone having written authorized consent of that employee.  Employers are also required to make available to an employee, or the employee’s representative, the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at that workplace.

The ETS requirements do not apply to employees of covered employers who exclusively work at home or outdoors, or at a workplace where other individuals such as coworkers or customers are not present.

Effective Dates

Covered employers should plan to comply as soon as possible, but no later than the dates OSHA will begin to issue citations for noncompliance.  Therefore, employers should comply with all provisions, except testing for employees who have not completed their entire primary vaccination doses(s), by January 10, 2022.  The testing obligation for employees who have not received all doses required a primary vaccination must be implemented by February 9, 2022.

OSHA Guidance and Materials to Assist with Complying with the ETS

Available on OSHA’s website are a number of materials to assist employers in understanding and complying with the requirements of the ETS, including:

• A half-hour webinar that describes the requirements;
• Simplified fact sheets on workers’ rights (English and Spanish available), penalties for knowingly supplying false information (English and Spanish available), and reporting COVID fatalities and hospitalizations;
• Detailed policy templates; and
• Additional information and guidance in detailed FAQs.