RBS News

The New COVID-19 Vaccination and Testing Mandate for Employers with 100 or More Employees

On November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its long-anticipated Emergency Temporary Standard (“ETS”) that mandates COVID-19 vaccines or weekly testing and mask wearing. The policy requirements of the ETS take effect on December 5, 2021 and the vaccination or testing mandate must be fully implemented by January 4, 2022.   Below are the key portions of the ETS:

WHICH BUSINESSES ARE COVERED?
All private employers that employ 100 or more employees as of December 5, 2021.  If an employer has less than 100 employees as of that date, it is not subject to the ETS. However, once that employer hires more workers and hits the 100-employee threshold, it then becomes covered by the ETS regardless of fluctuations in the size of its workforce.

WHICH EMPLOYEES ARE INCLUDED IN DETERMINING THE 100 EMPLOYEE THRESHOLD?
The ETS sets forth the following guidance:

1. In counting the number of employees, an employer must include all part-time and full-time employees employed across all US locations.
2. Independent contractors are not counted as an employee.
3. For a single corporate entity with multiple locations, all employees at all locations are counted.
4. In a traditional franchisor-franchisee relationship, the franchisor counts only its “corporate” employees and the franchisee counts only its employees.
5. Two or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company.
6. On multi-employer worksites such as a construction site, each company represented – the host employer, the general contractor and each subcontractor – would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site.
7. In situations in which an employer uses a staffing agency, the staffing agency must count all employees assigned to all employer locations in determining whether it employs 100 employees. The host employer need not count the employees of staffing agencies. The ETS presents the following examples:

• If a host employer has 80 permanent employees and 30 temporary employees, the host employer is not covered by the ETS;
• If the staffing agency has 100 employees, some of whom are assigned to a host employer who is not covered by the ETS, the staffing agency is responsible for ensuring compliance with the ETS for the jointly employed workers; and
• If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency with less than 100 employees of its own, the host employer is covered by the ETS but the staffing agency is not.

WHICH BUSINESSES ARE EXEMPTED FROM THE ETS?
The ETS exempts from its coverage:

1. Employers covered under OSHA’s COVID-19 Healthcare Emergency Temporary Standard, effective June 21, 2021, for businesses that provide healthcare services or healthcare support services and
2. Businesses covered under the Federal Contractors and Subcontractors Guidance issued by the Safer Federal Workforce Task Force on September 24, 2021.

WHAT ARE THE ETS REQUIREMENTS?
A covered employer must publish a written policy compliant with the ETS on or before December 5, 2021 that requires all employees to be fully vaccinated by January 4, 2022.  The testing requirement may be delayed until January 4, 2022.

Employees who have a medical reason or who hold a sincerely held religious belief precluding them from becoming vaccinated may be reasonably accommodated by being required to wear a face covering while at work and provide proof of regular testing for COVID-19 testing.

Employers are given the option to offer any employee, with and without a sincerely held religious belief or a medical reason, of wearing a face covering at all times at work and provide proof of regular testing for COVID-19 testing.

ARE EMPLOYEES WHO WORK REMOTELY SUBJECT TO VACCINE OR TESTING MANDATES?
No.  The following employees are not subject to the vaccine or testing mandates:

1. Employees who do not report to a workplace where other individuals are present;
2. Employees who work from home; or
3. Employees who work exclusively outdoors are not subject to the mandates.

Although these three groups of employees are not subject to the mandates, they are counted as employees in determining whether or not the employer employs at least 100 employees.

WHAT TYPE OF VACCINATION PROOF MUST BE MAINTAINED BY THE EMPLOYER?
The ETS requires that the employer maintain actual copies of proof of vaccination for each employee, along with a roster of each employee’s vaccination status. These records must be maintained confidentially and treated as medical records.

There are five (5) different types of proof of vaccination:

1. An immunization record from a healthcare provider;
2. A COVID-19 vaccination card;
3. Medical records documenting vaccination;
4. Medical records from a public health immunization information system; or
5. Other official documentation that specifies the type of vaccine administered, the dates administered, and the name of the health care provider.

If an employee cannot produce any of the above, then the employee may sign a sworn statement that they are fully vaccinated, the dates and identity of the vaccination site and certify that they are unable to provide the required documentation.

WHAT COVID-19 TESTS ARE PERMISSABLE UNDER THE ETS?
The test must be an FDA-approved (including in an Emergency Use Authorization (EUA) test to detect current infection with the SARS–CoV–2 virus (e.g., a viral test); (ii) administered in accordance with the authorized instructions; and (iii) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection is either done or observed by an employer.

HOW OFTEN MUST AN UNVACCINATED EMPLOYEE BE TESTED?
Employees who work at least one day each week must be tested once a week and provide documentation within seven days of their last test result. Employees who do not work every week must be tested within seven days prior to their return to work.  If an unvaccinated employee tests positive for COVID-19, the employer must not require further testing for 90 days.  The employer must maintain records of all test results and keep them confidential.

WHO PAYS FOR THE COVID-19 TESTING?
Unless a collective bargaining agreement exists that provides otherwise, an employer is not required to pay for the weekly testing. However, employers must be aware that a risk exists with employees who are paying for their own testing and who earn minimum wage. We are awaiting for more guidance from the Department of Labor on this issue.  

DOES THE ETS REQUIRE PAID TIME OFF FOR EMPLOYEES TO OBTAIN VACCINATIONS OR TESTS?
The ETS requires employers to provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose. 

Employers are not required to pay unvaccinated employees to take the regular tests. However, whether or not testing time is compensable work time under the Fair Labor Standards act remains unclear.

WHAT IS THE PROTOCOL FOR POSITIVE COVID-19 TESTS?
Employers must require all employees, vaccinated and unvaccinated, to notify them of a positive COVID-19 test. The employee must be removed from the workplace until they are able to return to work. An employee can return to work upon a negative test, a doctor’s certification or compliance with CDC isolation standards.

Employees who test positive for COVID-19 are not entitled to any paid time off in addition to the amount provided in the employer’s policies.

WHAT ARE THE PENALITES FOR NON-COMPLIANCE?
The ETS provides that OSHA can issue citations of up to $14,000 per violation.

HOW LONG IS THE ETS IN EFFECT?
It is in effect for six (6) months, but may be extended.

ARE THERE GOING TO BE LEGAL CHALLENGES FILED?
It is extremely likely that there will be various challenges by both states, industry groups, civil liberty advocates and others. In a letter issued by the Attorney Generals of 24 states, including Ohio, the ETS was characterized as “disastrous and counterproductive.”  three legal arguments were set forth challenging the ability of OSHA to enforce the ETS:

1. The requisite OSHA standard of “grave danger” to employees is not met;
2. COVID-19 is not a substance, agent, or hazard to which the OSHA statute refers; and
3. Grouping employers on the basis of 100 or more employees does not meet the requirement that the standard be necessary to alleviate the danger.

WHERE TO GO FROM HERE?
We are recommending that companies immediately prepare for the implementation of the ETS on December 5, 2021.  All employers subject or potentially subject to the ETS should take the following steps:

1. Determine whether the 100-employee threshold requirement is met. Keep in mind that the date of determining whether this threshold is met is December 5, 2021.
2. Determine whether the employer will allow all non-vaccinated employees to opt for testing and masks or only those with a medical or religious exemption. If the latter, a decision must be made as to what will occur to those employees who refuse to be vaccinated on non-medical and non-religious grounds.  
3. Determine whether or not to pay for the testing. Consider alternatives such as a hybrid policy of providing employer-paid testing at certain times and if an unvaccinated employee cannot attend, then the test must be taken at the employee’s expense. Contact your health insurance provider to determine whether such tests are covered. Contact your local pharmacy to obtain information as to costing, group discounts, etc.
4. Prepare a policy consistent with the ETS and distribute it to begin the education process for all employees.

Your RBS team of attorneys is prepared and ready to assist all of our clients in complying with this new mandate.  We will also keep you updated with developments, including any court decisions that impact the December 5, 2021 deadline.  In the meantime, please contact RBs with any questions or concerns.

This article is merely an overview of the ETS and is not to be construed as legal advice on this or any particular subject