Update 11/8/21 –  On Saturday, a three-judge panel in the U.S. Court of Appeals for the Fifth Circuit in Louisiana issued a  stay of enforcement of the OSHA rule mandating vaccines for employees of large businesses. The ruling blocks the OSHA rule as outlined below. We are following the situation and will keep you updated.  

On Thursday, November 4, 2021, Federal OSHA issued its emergency temporary standard (ETS) regarding mandatory COVID-19 vaccinations and COVID-19 testing.  The ETS will become effective on January 4, 2022.  The date by which employees must be vaccinated under the federal contractor rule was pushed back to the same date.

The ETS requires employers to adopt mandatory vaccination policies for their workplaces.  The ETS does allow employers to also adopt a policy allowing employees to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.  The ETS makes it clear that OSHA prefers that employees be required to be vaccinated.

A mandatory vaccination policy must require vaccination of all employees other than those employees:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or
• Who are legally entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

If an employer allows COVID testing in lieu of vaccination, employees who do not wish to be vaccinated must be tested for COVID-19 every 7 days.  Unvaccinated employees must begin wearing masks on December 5 and provide a negative COVID test beginning on January 4.

The ETS does not apply to employers covered by the federal contractor rule requiring mandatory vaccinations.  However, if a federal contractor is not subject to the new federal contractor rule because their contract has not been renewed or extended, the contractor must comply with the ETS until they are covered by the federal contractor rule. The ETS also does not apply to employees while they are working from home, or who work exclusively outdoors.

Beginning on December 5, the ETS requires employers to provide paid time off while an employee is being vaccinated or recovering from any vaccine side effects that prevent them from working.  Employers are not required to pay for the costs of the testing, or the time off for testing unless required by local or state law or a collective bargaining agreement.

What Businesses are Covered

The ETS applies to employers that have a total of at least 100 employees at any time the ETS is in effect.  OSHA determined that unvaccinated employees of these employers face a grave danger of exposure to COVID-19, including the Delta variant, while they are at work.  Because this grave danger applies to all unvaccinated employees who come into contact with other people in indoor settings as part of their employment, the ETS applies to all employers with 100 or more employees, regardless of industry.

OSHA explained that the decision to limit the coverage of the ETS to employers with 100 or more employees is based on four reasons.

• OSHA is “confident” that employers with 100 or more employees can meet the ETS’ requirements promptly. OSHA is less confident that smaller employers can do so without undue disruption.
• The coverage threshold enables the ETS to reach two-thirds of all private-sector workers in the nation.
• The ETS will reach the largest facilities where the deadliest outbreaks of COVID-19 can occur.
• The 100-employee threshold is comparable with the size thresholds established by Congressional and agency decisions in analogous contexts.

Who is included in the 100 employee threshold?

For a company with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage.  The ETS states that in a traditional franchisor/franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes.

In situations where two or more related entities handle safety matters as one company, the employees of all companies making up the integrated single employer must be counted.

In the case of employees of a staffing agency, only the staffing agency would count the jointly employed workers for purposes of the 100-employee threshold.  This means that the host employer does not count the staffing employees but would be covered by the ETS if it has 100 or more employees in addition to the staffing agency employees.

In the construction context, each company working on a multi-employer worksite is treated differently in counting employees.  If a general contractor has more than 100 employees spread out over multiple construction sites, the employer is covered under the ETS even though it does not have 100 or more employees at any one worksite.

In all regards, part-time employees are counted in calculating the 100 employees.  Remote workers are also counted.

Legal Challenges

Legal challenges to the ETS are expected.  The ETS states that it pre-empts any state or local laws that prohibit mandatory vaccination policies.

Immediate Issues for Employers

Employers will have to decide if they will require all employees to be vaccinated, or whether they will allow employees to be tested weekly in lieu of vaccinations.  Although the work involved in collecting and monitoring weekly test results can be burdensome, allowing employees to avoid vaccination by being tested may cause less disruption and turmoil than mandating vaccinations.  Employers should begin now to collect information about the vaccination status of their employees.  Employers must determine the vaccination status of each employee, collect acceptable proof of vaccination, and maintain records of each employee’s vaccination status.

Responding to requests for a reasonable accommodation because of medical conditions or religious beliefs will also be time-consuming for employers.  Employers should develop forms and procedures for employees to request accommodations.  This process should be discussed in the written policy which OSHA requires.  Employees should be trained to review and decide on accommodation requests.  And as is the case with all medical information, employers should have protocols in place to preserve the confidentiality of vaccination status, requests for accommodation because of disabilities or other medical conditions.

The ETS does not cover remote workers.  For employers who have struggled getting employees back into the office, the ETS may result in more requests to work from home.

The fines for violating the ETS are high – $14,000 per violation.  Employers need to begin to consider these issues immediately.

Please reach out to Phyllis if you have any questions regarding your labor and employment issues.  Phyllis can be reached at pkarasov@larkinhoffman.com or 952-896-1569.