The highly anticipated OSHA Emergency Temporary Standard (ETS) COVD-19 rule for private-sector workers was announced this week. This ETS impacts approximately 84 million workers nationwide. This Legal Alert provides an overview of this important emergency rule and its impact on employers.
Employers Covered
Businesses with 100 or more employees in the U.S. are covered by the ETS. It is an enterprise, not a location, test. Part-time employees are counted, but independent contractors are not. 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. Two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company
Employees Not Covered
The requirements of the ETS do not apply to the covered employees of covered employers: 1) who do not report to a workplace where other individuals such as co-workers or customers are present; 2) while working from home; or 3) who work exclusively outdoors
Option to Provide Testing
Employers may choose to provide employees the option to get tested weekly rather than be vaccinated. A COVID-19 test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. The ETS does not require an employer to pay for any costs associated with testing.
Face Coverings
Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes except: 1) when alone in a closed room; 2) for a limited time while eating or drinking or for identification purposes; 3) when the employee is wearing a respirator or facemask; or 4) when the employer can show the use of a face covering is infeasible or creates a greater hazard that would excuse compliance. The ETS does not require an employer to pay for any costs associated with face coverings.
Compliance Dates
Employers must comply with all requirements of the ETS except for COVID testing for employees who are not fully vaccinated by December 5. The testing requirement compliance date is January 4, 2022. However, employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not completed the 2-week waiting period.
Employers Not Covered
The Centers for Medicare and Medicaid Services (CMS) is requiring workers at healthcare facilities participating in Medicare or Medicaid to be fully vaccinated by January 4, 2022, unless they receive a medical or religious exemption. The rule applies to employees whether their positions are clinical or non-clinical and includes employees, students, trainees, and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services at the facility under contract or other arrangements. OSHA’s ETS will not apply to workplaces covered by the CMS rule.
OSHA’s rule also does not apply to workplaces that are already covered by the directive that requires federal contractors to adopt a vaccination requirement. Please see our October 6, 2021 Legal Alert for more information on that requirement.
Documentation and Reporting Requirements
Employers must obtain each employee’s vaccination status and maintain a roster indicating each employee’s vaccination status. Vaccinated employees must provide proof of vaccination which the employer must maintain. Vaccination proof documents should, like all other employee medical records, be kept confidential. Vaccination rosters are to be provided only to those who “need to know.” Employers must make records available upon request to employees, an employee representative, and to OSHA.
Employers are also required to report to OSHA all work-related COVID-19 fatalities within eight hours of the employer being placed on notice of such a death. Employers must also report to OSHA each work-related COVID-19 hospitalization within 24 hours of notice.
Paid Leave
As expected, the ETS requires employers to offer paid leave to obtain the vaccination and to recover from any side effects. Up to four hours of additional paid leave must be offered to employees to get the shot, which includes travel time. Paid leave for recovery from side effects does not have any limitation but employers may require employees to use existing benefits (sick time, PTO, etc.) for such leave.
Rules for those Not Fully Vaccinated
The ETS recognizes that many employees are still working remotely or working a hybrid schedule. Unvaccinated or not yet fully vaccinated employees who physically come to the workplace at least every seven days must be tested for COVID-19 every seven days and must provide documentation every seventh day thereafter.
Employees who do not report to work every seven days must be tested within seven days of their arrival at the workplace and must provide proof of a negative test upon their return to the workplace. These employees cannot return to the office until they provide proof of a negative test.
Rules for Employees with a Positive COVID-19 Test or COVID -19 Diagnosis
These COVID testing requirements are not required for the 90 days after an employee either tests positive for COVID-19 or receives a COVID-19 diagnosis. Since employers must maintain of record of these positive tests and diagnoses, employers must require all employees who test positive or who receive a COVID-19 diagnosis to report it and must immediately remove those employees from the workplace. The employee cannot return to the workplace until he or she:
- Obtains a negative NAAT test;
- Meets return to work criteria set forth by the CDC; or
- Receives a return to work note from a healthcare provider.
Legal challenges have already been filed seeking injunctive relief barring the ETS from taking effect until its legality is fully litigated.
As with all things pandemic-related, this is a developing issue. Please join the authors for a more in-depth discussion of the ETS on Tuesday, November 16 during our complimentary webinar Navigating OSHA's New COVID-19 Emergency Temporary Standard. To register, click here.
If you have any questions about the ETS or other COVID-19 issues impacting employers, please contact the authors of this Alert, Rachel Ullrich, partner in our Dallas office at rullrich@fordharrison.com, Rick Warren, partner in our Atlanta office at rwarren@fordharrison.com, and Michael Prendergast, partner in our Jacksonville office at mprendergast@fordharrison.com. You can also contact any member of FordHarrison’s Coronavirus Taskforce or the FordHarrison attorney with whom you usually work.