Client Alerts

Winter Is Coming – And So Is the Emergency Temporary Standard From OSHA

By: William D. Edwards and Stephanie E. Harley

About: Employment & Labor

November 5, 2021 – Yesterday, the U.S. Department of Labor, through its Occupational and Safety Health Administration (OSHA), released a controversial emergency rule that details President Biden’s mandate that all medium and large employers require their workers to be fully inoculated against COVID-19 or get tested every week.

OSHA’s publication of the Emergency Temporary Standard (ETS) generally governs employers with 100 or more employees, requiring COVID-19 vaccination and/or weekly testing mandates. The ETS, which consists of 490 pages of guidance, takes effect today, and allows employers a 30-day window or until December 5, 2021 to comply with all requirements other than the testing requirement for employees who have not been fully vaccinated. The ETS gives employers an additional 30 days or until January 4, 2022 to comply with the testing requirement. According to the ETS, an employee is fully vaccinated if two weeks have passed since they received their second dose of a two dose vaccine (such as Pfizer-BioNTech or Moderna) or two weeks have passed since they received their single-dose vaccination (such as Janssen/Johnson & Johnson).    

Thus, by January 4, 2022, all employers with 100 or more employees must confirm that their employees have received their final vaccination dose. Thereafter, employers must require weekly testing for all unvaccinated employees. According to OSHA, the 100-employee threshold was instituted to focus on “companies that OSHA is confident will have sufficient administrative systems in place to comply quickly with the ETS.” Notwithstanding OSHA’s confidence, employers may be scrambling from the limited window of time allotted to bring their workplaces into compliance. Ulmer will be providing a comprehensive webinar on this issue in the next few weeks. For the time being, here is what employers need to know:

WHO IS COVERED?

The ETS generally applies to workplaces under OSHA’s authority and jurisdiction with at least 100 employees at any time the ETS is in effect. Although part-time employees should be counted towards the 100-employee threshold, independent contractors should not be included in any employee headcount. Importantly, the ETS does not apply to employees: (1) who do not report to a workplace where other individuals such as coworkers or customers are present; (2) while working from home; or (3) who work exclusively outdoors.

HOW DOES AN EMPLOYER INITIATE THE COMPLIANCE PROCESS?

Businesses with 100 or more employees should take the following steps to prepare for the December 5 deadline to comply with the ETS.

• Develop and implement a mandatory COVID-19 vaccination policy. The policy should include information regarding:
  • Requirements for COVID-19 vaccination;
  • Applicable exclusions from the written policy (i.e., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs);
  • Information on determining an employee’s vaccination status and how this information will be collected;
  • Paid time and sick leave for vaccination purposes;
  • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
  • The employer’s policies and procedures regarding vaccination, testing and results, COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated;
  • Protections against discrimination and retaliation under section 11(c) of the Occupational Safety and Health Act;
  • Prohibitions against civil and criminal penalties for providing false statements or documentation; and
  • Disciplinary actions for employees who do not abide by the policy.
• Other requirements and recommendations
  • Employers must mandate face coverings for unvaccinated employees in close proximity with other workers;
  • Employers must not prevent face coverings for employees unless such coverings cause a severe workplace hazard (e.g., interfering with the safe operation of equipment);
  • Employers should determine employees’ current vaccination status and obtain proof of vaccination;
  • Employers must keep a roster of vaccinated and unvaccinated employees;
  • An employee’s individual vaccination and testing records must be made available for that employee to view and copy; and
  • An employee or employee representative, upon request, must be provided by his or her employer the aggregate number of fully vaccinated employees at the workplace along with a total number of employees at that workplace.

ARE THERE ANY EXCEPTIONS TO ETS?

• Workplaces exempt from ETS
  • Those already covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
  • Those in settings where employees provide health care services and are covered by the Healthcare ETS (29 C.F.R. 1910.502).
• Employees exempt from ETS
  • Employees who work-from-home;
  • Employees who do not report to work where coworkers or customers are present; and
  • Employees who work exclusively outdoors.

Several organizations/state governmental entities have already indicated that they intend to challenge the legality of the ETS, although whether these challenges will be successful is yet to be seen. Further information and clarification regarding the ETS is likely to develop over the coming days.

Ulmer’s Employment & Labor Practice Group will continue to stay on top of these developments and provide more in-depth analysis and guidance on the ETS and what it means for your business. Please reach out to our attorneys if you have any questions.

The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact William D. Edwards at wdedwards@ulmer.com or Stephanie E. Harley at sharley@ulmer.com.