New OSHA Emergency Temporary Standard: Private sector employers with 100+ employees must require COVID-19 vaccination or weekly testing effective January 4, 2022

On Thursday, November 4, 2021, the Biden Administration issued a new Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) regarding COVID-19 vaccinations for private sector employers with 100 or more employees. This new standard does not apply to Texas public sector employers.

Here are the key facts to know about the new ETS:

The 100-employee threshold includes part-time, temporary, and seasonal workers, but not independent contractors or staffing agency workers. The employee count should be done company-wide, not based on individual locations. Employees who exclusively work from home or outside are not required to comply with the ETS’s vaccination or testing and masking requirements, however, they still must be counted in the 100-employee count. If those exclusively work-from-home employees or outside employees come into the office, they must comply with the vaccination or testing and masking requirements, unless their duration of inside time where others are present is de minimis (e.g., using the restroom or grabbing something from the office).

Employers have a deadline of January 4, 2022 to either mandate vaccinations for all employees or implement a policy where employees have the choice to either be fully vaccinated against COVID-19 or test negative for COVID-19 at least once a week and wear a mask indoors or in vehicles with others. “Fully vaccinated” means employees either have two doses of the Pfizer or Moderna vaccine, or one dose of the Johnson & Johnson vaccine, and at least two weeks have elapsed since their last dose. Employees who have received all requisite doses of the vaccine by January 4 do not have to engage in weekly testing, even if they have not completed the two week waiting period. In contrast, employees who have not received all requisite doses by January 4, will have to submit to weekly testing until they have received all required doses and two weeks have elapsed. At this time, COVID-19 booster shots are not required under the new ETS. Employees who work fully remotely or fully outdoors do not have to be vaccinated.

Companies have a deadline of December 5, 2021 to implement all other requirements in the new OSHA standard, including mandatory masking, developing a COVID-19 vaccination policy, gathering vaccination documentation, complying with reporting requirements, and providing paid leave for vaccinations and recovery time  (see below for more detail).

Masks will be mandatory while indoors with others or in a vehicle with others at work for employees who are not fully vaccinated.

Employers must develop, implement, and enforce a COVID-19 vaccination policy in line with this new standard (i.e., requiring employees be fully vaccinated or begin weekly testing and mandatory facemasks) by December 5, 2021.  Employers may choose to implement the mandatory vaccine policy for customer-facing employees, and use the choice of mandatory testing and masking for non-customer facing employees. For employers who want to implement a mandatory vaccination policy, exceptions should be made for employees for whom a vaccine is medically contraindicated, when medical necessity required a delay in vaccination, and when required as a reasonable accommodation under federal civil law because an employee has a disability or a sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement. Before terminating an employee under a mandatory vaccine policy based on a disability or religious objection, the employer must determine if accommodation, such as remote work or weekly testing and masking in the workplace is reasonable.

OSHA has released two sample policies online at https://www.osha.gov/coronavirus/ets2. For ease of reference the sample policies are linked here:  Sample 1: Mandatory Vaccination Sample; Sample 2: Vaccination or Testing and Face Covering Sample.

Employers must keep vaccination documentation for each employee. Under the OSHA standard, employers must obtain proof of vaccination for each employee, and maintain a roster of each employee’s vaccination status, whether vaccinated or not, for the duration of the ETS. This confidential medical documentation should be kept secured and separate from an employee’s regular personnel file. When requested, companies must provide employees, or anyone with authorized consent of the employee, with copies of any COVID-19 related documentation for that employee (including vaccine records and testing results). Employers must also provide the number of fully vaccinated and unvaccinated workers within their workplace by the end of the next business day after a request from an employee or representative.

Employers must report COVID-19 related deaths and in-patient hospitalizations resulting from work-related exposure to OSHA. Fatalities must be reported within 8 hours of the employer receiving notice, and in-patient hospitalizations must be reported within 24 hours after notice. The ETS also requires employers to provide OSHA with the aggregate number of vaccinated and unvaccinated employees and its COVID-19 vaccination policy within 4 hours of a request.

Employers are required to provide paid time to workers to get vaccinated and paid sick leave to recover from any vaccination side effects. Notably, the ETS does not require employers to pay for or provide testing to workers who decline the vaccine. Employers are not required by the ETS to pay for time spent testing, and should look at their own policies and practices to assess whether paid time for testing is required, and to determine whether they want to pay for the testing.

The ETS preempts state and/or local laws banning vaccine mandates, mandatory mask policies and other COVID-19 mitigation measures. For Texas employers, this means that the new standard preempts Governor Greg Abbott’s executive orders prohibiting vaccine mandates. Litigation on this point is expected.

Penalties against employers who do not enforce the new ETS are harsh, with fines of up to $13,653 per violation and much more for willful or repeated violations. However, because OSHA is not staffed to be able to inspect every covered workplace, it will likely rely on employee complaints or reports of COVID-19 work outbreaks to prioritize its enforcement actions.

For additional information about the new ETS, we recommend reviewing OSHA’s FAQs, available online at: https://www.osha.gov/coronavirus/ets2/faqs

This summary was prepared by Lloyd Gosselink’s Employment Law Practice Group: Sheila Gladstone, Sarah Glaser, and Emily Linn. If you would like more information, please contact Sheila at sgladstone@lglawfirm.com or 512.322.5863, Sarah sglaser@lglawfirm.com or 512.322.5881, or Emily elinn@lglawfirm.com or 512.322.5889.