The Occupational Safety and Health Administration (OSHA) released a much-anticipated Emergency Temporary Standard (ETS), OSHA ETS – Vaccination and Testing, regarding vaccine mandates or weekly testing for non-healthcare employers with 100 or more employees. The Interim Final Rule applies to all non-healthcare employers with 100 or more employees, including affordable senior housing and other non-healthcare settings.

Deadlines: The ETS is effective immediately upon publication in Federal Register (November 5^th). To comply, employers must ensure provisions are addressed in the workplace by the following dates:

• December 5, 2021 – All requirements other than testing for employees who have not completed their entire primary vaccination dose(s);
• January 4, 2022 – Testing for employees who have not received all doses required for a primary vaccination.

The ETS Preempts State and Local Laws: OSHA intends the ETS to address vaccination, face coverings, and testing for COVID-19. Thus, the standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan. In particular, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

The ETS is also a Proposed Rule: Although this ETS takes effect immediately, it also serves as a proposal for a final standard. OSHA seeks comments on all aspects of this ETS and how it could be adopted as a final standard. Comments are due in early December (30 days after the ETS is officially published in the Federal Register on November 5). Stakeholders may submit comments and attachments at www.regulations.gov under Docket No. OSHA-2021-0007.

The ETS is Applicable to Employers with 100 or More Employees: The OSHA ETS applies to private employers with 100 or more employees firm or corporate-wide.  Also, in states with OSHA-approved State Plans, state and local government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements. OSHA stated that it is confident that employers with 100 or more employees have the capacity to quickly implement the standard’s requirements. OSHA is also assessing the capacity of smaller employers and seeks comments to help the agency make that determination.

For more information on how to count the number of employees, see Section 2 of the OSHA ETS FAQs. This section of the FAQs addresses how to count part-time employees, minors, joint employees, independent contractors, multi-site employees, those working from home, and employees from staffing agencies. For example, on whether the count is based on 100 employees for the entire business or 100 employees per individual location, OSHA says, “The count should be done at the employer level (firm- or corporate-wide), not the individual location level.  Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.”

Workplaces that are not covered by the ETS: The OSHA ETS does not apply to the following workplaces/employers:

• Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors;
• Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502)(this is the previous OSHA ETS issued in June 2021 and set to expire December 21st) (See NOTE* below);
• Workplaces of employers who have fewer than 100 employees in total; and
• Public employers in states without State Plans.

NOTE*: It appears that Assisted Living providers and other HCBS providers that are still subject to the June 2021 OSHA Healthcare ETS are not subject to this OSHA Vaccination and Testing ETS nor the CMS Health Care Staff Vaccination Interim Final Rule that was issued on the same day.

Employee coverage: The requirements of the ETS do not apply to:

• Employees who do not report to a workplace where other individuals are present.
• Employees while working from home.
• Employees who work exclusively outdoors.

COVID-19 Plan Requirements: Employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that choose instead to establish, implement, and enforce a policy allowing employees to either get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.

Determination of employee vaccination status: Employers need to determine the vaccination status of all employees, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, as well as maintain a roster of each employee’s vaccination status.

Employer support for employee vaccination: Employers must support vaccination by providing all employees reasonable time (up to 4 hours of paid time for each dose) to get vaccinated and paid sick leave to recover from side effects experienced following each dose.

Testing and costs for testing for employees who are not fully vaccinated: Employers must require each employee who is not fully vaccinated get tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.

Notification and removal: The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID- 19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; and (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Regardless of COVID-19 vaccination status the employer must keep the employee removed until the employee:

1. receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
2. meets the return to work criteria in CDC’s “Isolation Guidance” (incorporated by reference, § 1910.509); or
3. receives a recommendation to return to work from a licensed healthcare provider.

Face coverings: Each employee who is not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace.

Information provided to employees: Employers shall provide employees the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Reporting COVID-19 fatalities and hospitalizations to OSHA: Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Availability of records: Employers need to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or their representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Enforcement and Penalties: OSHA plans to investigate and issue fines for non-compliance with the ETS.  OSHA may issue fines up to $13,653 for each serious violation and for willful violations the fines could reach as high as $136,532.

Court Challenge: We anticipate that the ETS will be challenged in federal court by a group(s) of governors and state attorneys general and/or other interested parties. 

Resources:

OSHA Vaccination ETS Webpage

OSHA ETS FAQs – Vaccination and Testing

Webinar on OSHA ETS – Vaccination and Testing

LeadingAge article, How the New HHS and OSHA Rules Apply to Assisted Living, Adult Day, and other HCBS Providers.

LeadingAge article, CMS Releases Vaccine Mandate Rule for All Certified Settings.