The New OSHA COVID-19 Vaccination and Testing ETS: On Hold Now but Maybe Coming Soon

Under the federal government’s COVID-19 Action Plan, three  separate, new vaccine mandates will affect local government employers. Of the three, one from the Occupational Safety and Health Administration (OSHA) will have the greatest impact—if the courts let it stand. The new OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) will require employers to put a vaccine requirement in place or to test employees who are not vaccinated on a weekly basis, beginning on January 4, 2022.

Enforcement of the new OSHA ETS is presently stayed blocked by a court order. When that legal challenge will be resolved is unclear. This blog post highlights the requirements of the new OSHA ETS. Local government employers should begin to prepare now.  If the legal challenge is resolved in favor of the new ETS, compliance could be required quickly. This blog post will be updated when the case is resolved.

BACKGROUND

The COVID-19 Action Plan sets out three separate vaccine mandates from the federal government:

• a Centers for Medicare and Medicaid rule requiring employees of certain Medicare-certified healthcare organizations to receive a first dose by December 4, 2021 and a second dose by January 6, 2022 (see here for a discussion);
• a guidance requiring federal contractors to see that their workers are vaccinated by January 4, 2022; and
• the new OSHA ETS directing employers to require their employees to be vaccinated or to be tested weekly.

This blog post addresses the new OSHA ETS. On its face, the ETS applies to private employers, but it will likely apply to North Carolina local government employers through the State Plan Agreement between OSHA and the State of North.

The OSHA State Plan

Federal OSHA regulations do not apply to state and local government employees. But federal OSHA has an agreement with the North Carolina Division of Occupational Safety and Health (NC OSH) whereby NC OSH develops its own “State Plan” that covers both private and public sector employees. The NC OSH standards (or rules) must be the same as or “at least as effective as” the federal standard or rule (twenty-six other states and one U.S. territory also have State Plans). For more on State Plans, see here and here.

If the court order blocking the new OSHA ETS is lifted, NC OSH will either adopt new OSHA mandate in full or tweak it (but cannot make it weaker) once the litigation is resolved. The rule NC OSH adopts will apply to local governments. Whether the rule will only apply to local governments with 100 or more employees (as the new OSHA mandate does for private employers) or whether NC OSH will extend it to cover all local governments is not yet known.

THE NEW OSHA ETS

The new OSHA ETS was published in the Federal Register on November 5, 2021. It is currently the subject of a challenge in the federal courts and its enforcement has been stayed. For more on the lawsuits challenging the ETS, see the latter part of this blog post.

Under the federal Occupational Safety and Health Act’s General Duty Clause an employer must provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Because the General Duty Clause is just that – general – it does not provide employers with a roadmap or specific requirements that will better protect their workers from transmission of COVID-19. This is the same concern that led OSHA to issue its Bloodborne Pathogen Standard in 1991 and the Healthcare Emergency Temporary Standard (Healthcare ETS) in June of this year. Like those two standards, the new OSHA ETS sets out specific and comprehensive rules for vaccination and testing.

Mandatory Vaccination or Vaccination and Testing

The OSHA ETS gives employers a choice. They may adopt a mandatory COVID-19 vaccination policy under which all employees must be vaccinated. Or they may adopt a policy that makes vaccination optional but requires weekly COVID-19 testing and face coverings for unvaccinated employees. The new OSHA ETS does not apply to employees who do not work where other employees or members of the public are present, employees working from home, or employees who work only outdoors.

The Mandatory Vaccination Alternative

The first option is a mandatory vaccination policy.  Under this option, the mandatory vaccination policy must be written and require all employees, including all new employees, to be vaccinated. The only permissible exceptions are (as with all vaccination requirements) for employees with medical conditions that make vaccination contraindicated or for those with sincerely-held religious beliefs.

With a Mandatory Vaccination Policy, is Anyone Exempt?

As with other vaccination mandates, the Americans with Disabilities Act requires employers subject to the new OSHA ETS to accommodate employees for whom vaccination is medically contraindicated by exempting them from the requirement. An ADA accommodation will generally be limited to employees with a documented allergy to polyethylene glycol (PEG) or polysorbate 80. For more on medical contraindications, see here and here.  Similarly, Title VII of the Civil Rights Act of 1964 requires employers to accommodate employees whose sincerely held religious beliefs preclude vaccination. For more on religious objections to vaccination, see here. These are the only recognized exemptions from the ETS mandatory vaccination alternative.

In limited circumstances an accommodation may be necessary for employees who are suffering from an acute illness due to COVID-19 itself or who are receiving monoclonal antibodies or convalescent plasma for the treatment of COVID-19.

The Vaccination or Testing Alternative

The second employer option makes vaccination optional but requires testing for unvaccinated employees. This testing alternative requires employers to ensure that any employee who is not fully vaccinated and who reports to a workplace where coworkers, citizens or clients are present is tested for COVID-19 at least once every seven days. Unvaccinated employees must also wear face coverings in the workplace.

Testing Requirement. The testing alternative does not require employers to perform the testing themselves. They must ensure, however, that employees provide documentation of their most recent COVID-19 test results no less frequently than every seven days. Employees who have not been in the workplace for seven or more days must be tested for COVID-19 within the seven-day period before they return to work and provide that test result as soon as they return.

Only FDA-approved COVID-19 tests may be used. This includes tests approved under an Emergency Use Authorization). Tests that are self-administered by the employee do not count unless they are administered and read in the presence of the employer or a telehealth proctor.

Employers must keep a record of each test. These test results are then confidential medical records. Under the Americans with Disabilities Act, they must be kept in a confidential medical file separate from the rest of the employee’s personnel file and disclosed only on a strict need-to-know basis.

Employees who test positive for COVID-19 should be exempted from weekly testing for a period of 90 days following their positive test or diagnosis.

Face Covering Requirement. Unvaccinated employees must also wear a face covering when indoors or when in a vehicle with another person for work purposes. Employers must ensure that unvaccinated employees are wearing face coverings that meet the following standard:

1. It completely covers the nose and mouth.
2. It is made of two or more layers of solid piece breathable, tightly woven fabric that does not let light shine through and contains no slits, breathing valves or other openings.
3. It is secured to the head with ties, ear loops or elastic bands that go behind the head.
4. It fits snugly over the nose, mouth and chin with not large gaps around the face.

For communicating with persons with hearing disabilities, clear face coverings (face shields) and cloth face coverings with a clear plastic panel are permissible. There are only four circumstances in which an unvaccinated employee may remove their face covering:

• when the employee is alone in a room behind a closed door;
• for the limited time for the purpose of eating and drinking;
• when necessary to comply with safety or security requirements;
• when the use of a face covering creates a greater hazard than going without a face covering.

Costs of Testing and Face Coverings. The new OSHA ETS does not require employers to pay for the costs of weekly testing of unvaccinated employees or for the cost of their face coverings.

Proof of Vaccination Status

Whichever policy an employer adopts–the mandatory vaccination policy or the vaccination or testing alternative—the employer must determine for each employee whether they are partially vaccinated, fully vaccinated, or not vaccinated at all. The following constitute acceptable proof of vaccination status:

• immunization record from a healthcare provider or pharmacy;
• a copy of the CDC Covid-19 Vaccination Record card:
• medical records documenting the vaccination;
• a copy of immunization records from a public health or state immunization information system;
• any other official documentation that contains the type of vaccine administered, the date of vaccination and the name of the healthcare profession or clinic administering the vaccine.

In the rare circumstance that an employee is vaccinated but is unable to show proof of vaccination (perhaps they have been vaccinated in another country, for example), an employer may accept a signed attestation that complies with the specific language set forth in the new OSHA ETS.

In addition to individual records, the employer must maintain a general roster showing the vaccination status of each employee.

Paid Time Off for Vaccination Required

The new OSHA ETS also requires employers to provide employees with up to four hours of paid time off at the employee’s regular rate of pay to get vaccinated. The four hours includes travel time to the vaccination site and includes time for both doses of a two-dose vaccine. An employer must also provide a reasonable amount of paid sick leave to recover from any side effects from vaccination.

Employees Infected with COVID-19

Employers must make it a condition of employment that any employee must immediately inform the employer when the employee tests positive for COVID-19 or is diagnosed with COVID-19 by a licensed healthcare provider. The employer must immediately remove the employee from the workplace. Employees may not return to work until:

• they test negative on a PCR or other NAAT COVID-19 test; or
• if symptomatic, they have stayed home for 10 days after symptoms first appeared and until they have gone 24 hours without a fever or without the use of fever-reducing medications, such as aspirin, ibuprofen (Advil, Motrin) or acetaminophen (Tylenol) and other symptoms are improving; or
• if without symptoms, they have stayed home for 10 days after the date of their positive COVID-19 test (and if symptoms develop, then they have followed the guidelines for symptomatic employees); or
• they receive a recommendation from a licensed healthcare provider to return to work.

The new OSHA ETS does not require employers to provide paid time off when employees are absent due to COVID-19 infection.

Information That Must Be Given to Employees

The new OSHA ETS requires employers to provide employees with information about the new requirements and about any policies or procedures that the employer has adopted to comply with them. The employer must also give employees a copy of the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.dcd.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html . Finally, employers must inform employees that OSHA prohibits discrimination or retaliation against or discharge of an employee for reporting a work-related illness.

Required Reporting to OSHA

The new OSHA ETS requires employers to report any work-related COVID-19 fatality within 8 hours of learning of it and any work-related COVID-19 hospitalization within 24 hours of learning of it.

DEADLINES FOR COMPLIANCE WITH THE NEW OSHA ETS

As written, the new OSHA ETS requires compliance with all aspects of the rule beginning on December 6, 2021, except for implementation of the mandatory vaccination or vaccination or testing requirement. This includes the development of policies and distribution to employees of policies and other required documents, mask-wearing by employees who are not yet vaccinated and reporting fatalities and hospitalizations to OSHA.

For the vaccination requirement, employees receiving either the two-dose Pfizer or two-dose Moderna vaccine must have received the second dose by January 4, 2022. Employees receiving the single dose Johnson & Johnson vaccine must have received the shot by January 4, 2022. Employees who have received their shots by this time will be considered to have met the deadline even though they will not be “fully vaccinated” until two weeks after receiving the last dose in the series.

It is likely (but by no means certain) that OSHA and NC OSH will delay enforcement of the new OSHA ETS for a few weeks or so after a final decision about its validity is rendered by the courts. The federal government is urging employers to voluntarily follow the new requirements, as has a large group of professional medical associations, including the American Medical Association, the American Academy of Pediatrics, the American College of Surgeons and the National League for Nursing.

PENALTIES FOR NONCOMPLIANCE WITH THE NEW OSHA ETS

The new OSHA ETS does not have an independent set of penalties. Employers who violate the ETS will be subject to OSHA’s general penalties. For 2021, OSHA’s maximum penalty is $13,653 per violation.

THE CURRENT STATUS OF THE NEW OSHA ETS

The validity of the new OSHA ETS is under review in federal courts around the country. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion for a nationwide stay on the new OSHA ETS and ordered OSHA to “take no steps to implement or enforce” it “until further court order.” Accordingly, OSHA has suspended enforcement pending the outcome of litigation.

In the meantime, on November 16, 20201, the federal Panel on Multidistrict Litigation consolidated all the challenges and assigned them through a lottery system to the Sixth Circuit Court of Appeals for trial. The Fifth Circuit’s stay will remain in effect, however, until the Sixth Circuit decides to lift it, or a final decision is rendered.

On its website, NC OSH takes note of the litigation and says that it will continue to monitor developments. As a State Plan, NC OSH cannot adopt the new OSHA ETS until it is in effect again.

WHAT SHOULD LOCAL GOVERNMENTS DO WHILE ENFORCEMENT OF THE NEW OSHA ETS IS STAYED?

At a minimum, local government employers should decide now which option they will adopt if the new OSHA mandate is upheld:  the mandatory testing option or the vaccination or weekly testing alternative. There may not be time for lengthy deliberation after a final decision is reached by the courts. Employers who wish to prepare further should next draft the appropriate policy explaining how the mandatory testing or the testing or vaccination process will work. OSHA has itself developed two policy templates, here and here, which employers may use to develop policies appropriate to their individual workplaces. Those employers who will adopt a mandatory vaccination program should also develop forms by which employees may seek an exemption from the vaccine requirement under the ADA because of medical contraindications or under Title VII because of sincerely held religious beliefs. Employers might also identify those employees who will not be subject to the new OSHA ETS because they do not work in a place where other employees or citizens are present, they work from home, or they work entirely outdoors. Employers who have not already done so might consider beginning the process of collecting information on which employees have been vaccinated and which have not. Whether or not the new OSHA ETS is upheld, employers already have the right to ask employees whether they have been vaccinated. See my blog post here.

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