Employer Compliance Essentials: OSHA COVID-19 Vaccination Emergency Temporary Standards (ETS)

UPDATE AS OF DECEMBER 10, 2021:

Current Status of OSHA’s ETS COVID-19 Vaccine Mandate

As we near the end of 2021, we are continuing to see a flurry of vaccine mandates, and it seems just as many litigation challenges to them. Our team has put together a quick reminder of the current status of the recent legislations related to vaccines as we head into the new year. Read the status update here.

UPDATE AS OF NOVEMBER 16, 2021:

Where does the OSHA ETS stand now; and what should you be doing?

The OSHA ETS was published November 5th, 2021 and was quickly challenged in multiple circuits. Most recently, on November 12th, the fifth circuit upheld the stay on the ETS In response, OSHA stated that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” although it “remains confident in its authority to protect workers in emergencies.” OSHA noted that the court ordered it to take no steps to implement or enforce the ETS until further court order.

So what do employers do now? No one can predict how slowly or quickly the court will resolve the current legal challenges. It is in the best interest of employers that are covered by the ETS to continue their planning and discussions and be prepared if they need to implement the ETS. MN OSHA has published that they will be adopting the ETS if required to do so under the Federal ETS. Now is the time to take the steps to be prepared so your business can be ready regardless of the outcome. With this update in mind, below are the compliance essentials you’ll need to know to prepare for the outcome of this litigation.

On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) released the details of the much anticipated Emergency Temporary Standard (ETS), announced via Executive Order by President Biden nearly eight weeks ago. In one sentence, the ETS requires all employers with at least 100 employees to ensure employees are either fully vaccinated or are tested weekly for COVID-19. While the intent of the regulations is clear, it’s the details that are leaving many employers wondering how the rules apply to their organization and what initial steps to take to ensure compliance.

For many employers and employees, there are very strong feelings, both positive and negative, about what the ETS means for themselves personally, their communities and nation. In addition, there have already been a flurry of lawsuits and challenges to the regulations that lead some to question the enforceability of the requirements. Despite all of this, covered employers should inform themselves of the details of the Emergency Temporary Standards, start planning and take action now to be ready for the upcoming implementation deadlines.

What employers should know about the OSHA COVID-19 Vaccination ETS:

• Who is a covered employer?

All employers in private business, not-for-profit, and state and local government with more than 100 employees are subject to the OSHA ETS.

• How do employers count employees?

The ETS defines “Employees” as paid workers of any type or status (full or part-time) except independent contractors and “temp” employees provided by a staffing service.

It’s also important to note that employers must count employees as of November 5th, 2021, the effective date of the ETS. As a result, if you have 100 or more employees on your payroll as of November 5th, 2021, you will remain covered for the duration of the standard’s enforcement, even if employee headcounts fall below 100. For example – if you have 105 employees on November 5th, 2021, and through attrition or seasonality have 90 employees on November 15th, 2021; you remain covered until the standard expires. Conversely, if an employer has 70 employees as of November 5, 2021, and hires 35 seasonal workers for the holiday season, totaling 105 employees, in December 2021, they would need to comply with the ETS once they reach the 100 employee threshold.

• How are related businesses and joint employers counted?
• • For a single employer entity with multiple locations, all employees at all U.S. locations are counted for purposes of the 100-employee threshold for coverage under this ETS.
  • In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.
  • In other situations, two or more related entities may be regarded as a single employer if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.
  • 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.
• What does the OSHA ETS require of covered employers?
  • All employees present in the workplace of covered employers will be required to either be fully vaccinated or participate in weekly COVID-19 testing and follow strict masking procedures.
    • Unvaccinated employees that work exclusively outside, fully remotely, or alone in a work location are not subject to the testing requirements.
  • If mandating vaccination, employers must allow for reasonable accommodation requests from employees who may qualify for a vaccination exemption due to medical or legitimate religious reasons.
    • Approved accommodations will still require exempt employees to submit to weekly testing and masking requirements if they continue to be present in the workplace.
  • Detailed documentation and records of all vaccination verifications and testing results must be maintained by the employer, confidentially, for the duration of the ETS.
  • Employers are required to provide up to four (4) hours of paid time off for employees to get vaccinated during working hours. The employer is not required to pay that time if vaccination occurs outside of normal working hours.
  • Unless otherwise required by state or collective bargaining rules, the employer is not responsible for the cost of testing for employees who choose not to get vaccinated.
  • Employers who do not comply with the ETS are subject to significant enforcement penalties which can be assessed on a per employee and per-instance basis.
• When does the ETS become effective?
  • By December 5, 2021:
    • Employers must decide whether they will implement a vaccine mandate or offer the alternative of weekly testing for all unvaccinated employees.
    • Covered employers must draft a formal written policy, translated for employees where necessary, that outlines their vaccine mandate or testing policies. There are also mandatory employee vaccination resources and employment notices that must be provided to employees within this policy.
  • By January 4, 2022:
    • Employers must have a fully documented record of the vaccination status of every employee within the organization that could be made available to OSHA authorities almost immediately upon request.
    • All employer vaccine mandates and/or testing policies and practices must be in place and implemented for any unvaccinated employees.
    • Employers must have adequate workplace masking policies in place for all unvaccinated employees.

Employer Considerations and Next Steps

Regardless of their stance or opinion of the ETS mandates and requirements, employers must realize that the regulations stand and there is very little time, less than 60 days, to make critical decisions and begin taking action and planning. The Abdo HR Advisory Team is recommending that employers address the following key considerations and communications:

• Gather key leaders and decision-makers within the organization to decide to either mandate vaccinations or select the alternative of weekly testing for unvaccinated workers. In either case, employers will need to consider a wide variety of factors, including leadership philosophy related to vaccine mandates, employee vaccination demographic (i.e. How many unvaccinated employees are we talking about?), administrative/HR capacity, testing and masking logistics, and recruiting or retention concerns.
• Once a decision is made, employers should provide clear and timely communication with employees about what they can expect. There’s no need to wait to provide every detail of your vaccination policy before letting employees know about your plan.
• Begin collecting vaccination documentation from all employees, digital copies are sufficient, and drafting a formal mandate and/or testing policy.
• Research and consider your testing options and logistics. Even employers who elect to mandate vaccinations will likely have at least a handful of medical or religious exemptions that will require exempt employees to submit to weekly testing if they plan to be working around others. Employers should be sure they have a feasible plan to schedule testing, ensure adequate testing supplies, administer or outsource testing each week, and maintain documentation of weekly testing results.
• Identify which individuals within the organization will have access to confidential vaccination and testing information, based on their roles and responsibility for enforcement support.
• Be prepared to be adaptable. Employers should expect our understanding of the ETS to change and evolve as OSHA releases additional guidance and information. Make it a practice to check the OSHA ETS Frequently Asked Questions regularly for updates.
• If employers feel strongly about the ETS, either positively or negatively, they might consider submitting comments to OSHA during their 30-day open comment period at “OSHA’s Vaccination and Testing ETS: How You Can Participate.”

While the OSHA COVID-19 Vaccination and Testing ETS will likely continue to be an ongoing topic of discussion and debate, Abdo encourages employers not to take a “wait and see” approach to compliance. Employees deserve thoughtful, proactive, and reliable action and, by planning now, employers can ensure that they are adequately prepared and ready to support their most valuable resource, their people.

Do you have further questions about OSHA’s ETS or how it may affect your organization? Reach out to our team today to discuss your options.

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