The Occupational Safety and Health Administration (”OSHA”) has issued its long-awaited Emergency Temporary Standard requiring employers with 100 or more employees to mandate that each worker be fully vaccinated, or subject to at least weekly testing, by January 4. Public employers are not covered by OSHA and will not be subject to the rule.  In addition, states that have opted-out of OSHA and are covered by their own state plans instead will have 30 days to implement the ETS or their own standard which much be just as protective or face legal action from OSHA.  A list of those states is on page 209 of the ETS.

If employees cannot show proof of vaccination, if they do not produce a negative test, or if they test positive for COVID-19, the rule requires that those employees be removed from the workplace. There is no exception for employees who have previously had COVID-19 but who are not vaccinated.  Employers are not required to provide paid time off to any employee during such periods of removal.

The following types of employees are excluded from the requirements:  those who telework, those who work from locations where no other people are present, and those who work exclusively outdoors.  In addition, workplaces subject to the federal contractor executive order are not covered, and healthcare workers covered by the ETS issued by OSHA this summer are not covered.  Additional requirements will be taking effect for certain healthcare workers under the newly-issued CMS vaccine mandate rule.

The 100-employee threshold in the rule is based on the entire workforce, including part-time employees, at any time the ETS is in effect.  And, all employees of the organization are counted, rather than using a location- or facility-specific approach.  Independent contractors are not counted.  Regarding how to count staffing agency workers, the ETS provides:  “In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.” OSHA noted that it is beginning with companies that have 100 or more employees because it is “confident” that these companies “have the administrative capacity to implement the standard’s requirements promptly” but will consider whether to expand the applicability to smaller employers in the future.

Employers are not required to cover the cost of COVID-19 testing for unvaccinated employees, absent another law or agreement stating otherwise.  Employers providing testing as an alternative for unvaccinated employees with medical or religious exemptions may still need to cover the cost of testing because of prior EEOC and DOL guidance and decisions on the cost of required medical examinations (and the time spent on those examinations).  Employers also are not required to pay for providing masks for unvaccinated employees under the ETS.

Employers are required to maintain records of employee vaccination and of test results for unvaccinated employees.  These records must be maintained as confidential medical records, at least for as long as the ETS is in effect.  The method for maintaining the records should also comply with the existing ADA requirements for confidential medical records.

Additionally, although the deadline to complete vaccination or begin weekly testing is January 4, employers must take certain actions starting no later than December 5:

  • Employees who remain unvaccinated must wear masks in the workplace.  OSHA will accept any mask that completely covers the worker’s nose and mouth; is made with two or more layers of a breathable, tightly woven fabric; and secures to the head with ties, ear loops or elastic bands that go behind the head; and
  • Employers must provide up to four hours of paid time off to employees in order to receive the vaccine or recuperate from any side-effects upon receiving the vaccine.

Employers should examine the size of their workforce and ensure compliance by each deadline. Employers not enforcing OSHA’s rule could face a fine of up to $13,653 for each serious violation, meaning situations where an employer should have known about the potential risks of not enforcing the rule but failed to address them. A willful violation, when an employer deliberately ignored this rule, could entail a fine as high as $136,532 per violation.

Covered employers should keep in mind that the requirements of the ETS are the floor of what must be done.  Employers can choose to impose stricter requirements that are consistent with applicable law, such as requiring employees to be vaccinated unless they have a religious or medical accommodation.  In addition, the rule does not absolve employers of any collective bargaining obligations they may have regarding implementation or any stricter requirements imposed by law.