On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its muchanticipated Emergency Temporary Standard (ETS) regarding COVID-19 vaccination and testing requirements for large US employers, i.e., those employers with 100 or more employees. OSHA explained that it issued the ETS because of the "grave danger" that COVID-19 poses to workers and in order to "minimize the risk of COVID-19 transmission in the workplace."
As we discuss below, the ETS requires covered employers to either (1) devise, implement and enforce a mandatory COVID-19 vaccination policy or (2) instead adopt a policy requiring employees "to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work."
In either instance, covered employers must be prepared to implement and comply with the requirements outlined in the ETS by December 5, 2021, and January 4, 2022, as applicable. All employers with 100 or more employees should carefully examine the ETS and its accompanying substantive and procedural requirements, such as the administrative requirements on the gathering, verification, storage and disclosure of vaccination-related information.
Employers have only a short period of time to educate themselves on the requirements and options spelled out in the ETS, to develop vaccination plans and protocols, to train their workforce, and to implement and enforce the mandates that OSHA has imposed through the ETS. This is a challenge even for employers that have already implemented mandatory vaccination policies.
Scope and Application of the ETS
The ETS applies to all private employers that have 100 or more employees company-wide in the United States at any time that the ETS is in effect. Part-time workers and employees who work exclusively outdoors or work from home must be included in calculating the employee headcount, even though, as noted below, the ETS does not impose requirements with respect to employees who work exclusively outdoors or from home. Independent contractors, on the other hand, do not need to be counted toward the 100-employee threshold.
In addition, OSHA does not require a host employer to count employees of third parties, such as temporary staffing agencies, IT contractors and business services contractors as employees under the ETS-either for purposes of calculating the 100-employee threshold or more generally with respect to compliance with the ETS. Rather, the actual employer of those individuals bears responsibility for complying with the ETS. The host employer is, however, permitted to impose more stringent requirements on employees of third parties.
Certain workplaces are not subject to the requirements of the ETS if they are covered by separate regulations. Specifically, the requirements of the ETS do not apply either to workplaces that are covered under the Safer Federal Workforce Task Force's COVID-19 Guidance for Federal Contractors and Subcontractors or to workplace settings in which employees provide healthcare services or healthcare support services, as they are already subject to OSHA's June 2021 Healthcare ETS. In addition, in states with OSHA-approved State Plans, private employers with 100 or more employees will be covered by the state occupational safety and health requirements rather than the ETS. Notably, the ETS explicitly provides that it preempts all state and local requirements, including in states with State Plans, that ban or limit the authority of employers to require vaccinations, face coverings or testing.
Through the ETS, OSHA also excludes three categories of employees from the vaccination or testing/face covering requirements: (1) employees while working from home; (2) employees who work exclusively outdoors; and (3) employees who do not report to a workplace where other individuals, such as customers or coworkers, are present. However, employees who are in a vehicle with other employees for work purposes are subject to the ETS-required vaccination or testing regime.
Compliance Deadlines
Employers must comply with all of the provisions set forth in the ETS by December 5, 2021, except for testing. With regard to those employers who choose to offer employees the option to elect weekly testing in lieu of mandatory vaccination, the testing requirements must be implemented by January 4, 2022.
Mandatory Vaccination or Else Weekly Testing Plus Face Coverings
Regardless of whether a covered employer elects to "develop, implement and enforce a mandatory COVID-19 vaccination policy" or to create, implement and enforce a policy that requires employees "to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering" while at work, the ETS imposes a number of procedural and policy requirements.
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