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The Occupational Safety and Health Administration has issued its long-awaited COVID-19 Emergency Temporary Standard (ETS). Note that the ETS does not apply to employers covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors or Subcontractors (see here), or to settings where employees provide healthcare services subject to OSHA’s ETS for the healthcare industry (see here).

COVID-19 ETS Highlights

As an initial comment, the ETS is intended to supersede and preempt inconsistent state and local requirements, including those which limit an employer’s ability to require vaccination or face coverings, irrespective of the number of employees at an establishment. The following are some highlights of the ETS.

Compliance Deadlines

• Employers must implement all requirements of the ETS, with the exception of COVID-19 testing provisions, within 30 days of the publication of the ETS in the Federal Register. Publication is expected November 5, 2021, meaning compliance is required by December 5, 2021 (a Sunday).
• Employers must comply with the COVID-19 testing provisions within 60 days of publication of the ETS in the Federal Register. Publication is expected November 5, 2021, meaning compliance is required by January 4, 2022.
• State plans must adopt the ETS or their own standards which are at least as effective as the ETS within 30 days.

Employers and Employees Subject to the ETS

• Employers having 100 or more employees at any time the ETS is in effect.
• The ETS does not apply to employees who: (a) report to a workplace where no one else is present; (b) work from home; or (c) work exclusively outdoors.

Employer Vaccination Policy

• Employers must establish, implement, and enforce one of the following:
  • A written, mandatory vaccination policy which requires each employee to be fully vaccinated, including vaccination of new employees as soon as practicable; or
  • A written policy allowing any employee to choose between being fully vaccinated or providing proof of weekly COVID-19 testing and wearing a face covering when indoors or occupying a vehicle with another (with limited exceptions).
• Employers may implement a mandatory vaccination policy for a designated portion of its workforce, and the alternative policy for other portions.
• There are exceptions where vaccination is medically contraindicated, or a reasonable accommodation is required under federal law for a disability or sincerely held religious belief
• Employers are not required to pay for face coverings or COVID-19 testing, unless such payment is otherwise required by local laws or collective bargaining agreements
• Employers are required to:
  • Provide a reasonable amount of time to each employee for each primary vaccination dose;
  • Provide up to 4 hours of paid time, including travel time, at the employee’s regular rate of pay for each primary vaccination dose; and
  • Provide a reasonable amount of time and paid sick leave to recover from side effects experienced after each primary vaccination dose (paid sick leave may generally be capped at 2 days)

Determination of Vaccination Status

• Employers must require each vaccinated employee, whether fully or partially vaccinated, to provide proof of vaccination status in one of the following forms:
  • Immunization record from a healthcare provider or pharmacy, or from a public health, state, or tribal immunization system;
  • Copy of the COVID-19 Vaccination Record Card;
  • Medical records documenting the vaccination; or
  • Any other official documentation that contains: (a) the type of vaccine; (b) date of administration; and (c) name of healthcare professional or clinic administering the vaccine
  • If an employee is unable to provide the above proof, the employee must provide a signed and dated statement attesting: (a) to vaccination status (fully or partially vaccinated); and (b) that the employee has lost and is otherwise unable to produce another form of proof
    • The statement “should” also include, to the best of the employee’s recollection, the type of vaccine, date of administration, and name of healthcare professional or clinic administering the vaccine.
    • The statement must contain specific language declaring the truth of the information contained in the statement.
  • If an employee does not provide such proof, the employee must be treated as not fully vaccinated.
  • Where an employer ascertained an employee’s vaccination status prior to the effective date of the ETS through another form of proof or attestation and retains such documentation, the employer is exempt from the ETS requirements of assessing vaccination status, obtaining proof of vaccination status, and treating such employee as not fully vaccinated.

Retention of Vaccination Records

Employers must:

• Maintain a record of each employee’s vaccination status;
• Preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated;
• Maintain a roster of each employee’s vaccination status; and
• Retain such records and roster for the duration of the ETS

Notes on COVID-19 Testing

• If an employee subject to weekly COVID-19 testing does not provide proof of weekly testing, the employer must prohibit that employee from entering the workplace until the employee provides a test result
• If an employee tests positive for, or is diagnosed with COVID-19, testing is not required for 90 days following the positive test or diagnosis
• Test results must be retained for the duration of the ETS

Information to Employees

The employer must inform each employee, in a language and literacy level understood by the employee, about:

• The requirements of the ETS, as well as the employer’s policies and procedures for implementing the ETS;
• COVID-19 vaccination efficacy and safety, by providing each employee with this document;
• OSHA provisions which prohibit discrimination against employees for reporting work-related injuries or illnesses, or for exercising any rights under the ETS or OSH Act;
• The provisions of 18 U.S.C. 1001 and section 17(g) of the OSH Act, which provide for criminal penalties for knowingly supplying false statements or documentation.

COVID-19 Reporting

Employers must report to OSHA:

• Each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality; and
• Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization

Note: For work-related fatalities and in-patient hospitalizations for other injuries and conditions, existing OSHA standards do not require reporting where the fatality occurs more than 30 days after the workplace incident, or the in-patient hospitalization occurs more than 24 hours after the workplace incident.  There is no such exception for reporting work-related COVID-19 fatalities or in-patient hospitalizations.

Availability of Records

• Within one business day of a request, the employer must make available for examination and copying the employee’s COVID-19 vaccination documentation and test results to the requesting employee and anyone having the employee’s written consent.
• Within one business day of a request by an employee or authorized representative, the employer must make available to the requester the aggregate number of fully vaccinated employees at the workplace and the total number of employees at the workplace.
• When requested by the Assistant Secretary of Labor for OSHA, the U.S. Department of Labor, or their designees, the employer must make available for examination and copying:
  • Within 4 business hours, the employer’s written vaccination policy required by the ETS; and
  • Within one business day, all other records and documentation required to be maintained by the ETS

For additional questions, please contact BMD Healthcare Litigation Member Stephen Matasich at sematasich@bmdllc.com.