Action Items

  • Review Federal Contractor Executive Order and OSHA ETS for vaccine requirements in the workplace.
  • Monitor for further guidance and developments.
  • Consider, implement, and review vaccine-related policies, and how to create rules for the workplace when only some employees may have received the COVID-19 vaccine.
  • Consult with legal advisors about particular circumstances that may arise in your workforce.

The OSHA Emergency Temporary Standard (“OSHA ETS”) Requiring Workplaces With 100 Employees to Implement “Soft” Mandate of COVID-19 Vaccinations: On September 9, 2021, President Biden announced that he was instructing the Department of Labor, via OSHA, to develop an emergency rule requiring all covered employers with 100 or more employees to ensure their workforces are either fully vaccinated or undergo weekly testing and submit proof of negative test results. OSHA delivered a draft of the ETS to the White House on October 12, 2021, and the ETS was published in the Federal Register on November 4, 2021.1

UPDATE: On November 6, 2021, after a legal challenge filed by certain businesses, individuals, and State Governments, the Fifth Circuit Court of Appeals granted an emergency motion to stay the enforcement of the OSHA ETS.2 The Court granted this motion “[b]ecause the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” OSHA’s response to the challengers’ motion for a preliminary injunction was submitted on November 8, 2021, and the challengers replied on November 9. The Court’s ruling is pending.

What Employers Does the OSHA ETS Cover?

The OSHA ETS covers all employers with a total of 100 or more employees at any time the OSHA ETS is in effect. The OSHA ETS does not apply to federal contractors or subcontractors, whose workplaces are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. It also does not apply to healthcare service workplaces that are covered under OSHA’s separate Healthcare Workplaces ETS. OSHA stated that it is currently taking additional time to assess the capacity of smaller employers’ ability to implement the ETS, meaning there is the possibility that such guidelines will later be applied to employers with fewer than 100 employees.

The OSHA ETS applies to a wide range of workplaces including: manufacturing; consumer and home goods stores or retailers; transportation; broadcasting and telecommunications; credit intermediation, securities, funds, and financial vehicles; real estate; educational services; performing arts, museums, and amusement industries; religious organizations; and more.

Which Employees Does the OSHA ETS Cover?

The OSHA ETS covers all employees of a covered employer, with three exemptions: (1) employees who do not report to a workplace where other individuals such as coworkers or customers are present (i.e., a remote worksite); (2) employees who work exclusively from their homes; and (3) employees who work exclusively outdoors.

The OSHA ETS does apply to employees who have already had COVID-19 and may have some natural infection-acquired immunities. OSHA found that there is insufficient evidence to allow such infection-acquired immunities to allay the grave danger of COVID-19, and thus, employees who have already had COVID-19 will still be required to be vaccinated.

How Is the 100-Employee Threshold Being Counted?

OSHA has clarified that the 100-employee threshold for being a covered employer is based on the number of employees rather than on the type or number of workplaces. It includes all employees across all locations regardless of vaccination status or where the employee performs work. It includes part-time employees, but does not include independent contractors.

The determination of whether an employer is covered is separate from the question of whether an employee is covered. For example, if an employer has 100 employees but 25 of those employees work exclusively outside, the employer is still covered even though only 75 of its employees will be required to get vaccinated.

How Does the OSHA ETS Require Parent Companies & Their Subsidiaries to Count Employees?

For a single corporate entity, all employees at all the entity’s locations are counted. In a franchise context where each location is independently owned, the franchisor and the franchisee will count employees separately. The franchisor will count all employees who work at the corporate headquarters; the franchisee will count all employees who work at the franchises it owns. In other situations, two or more related entities may be regarded as a single employer if they handle safety matters as one company.

What Does the OSHA ETS Require Covered Employers to Do?

The OSHA ETS requires covered employers to create a Mandatory Vaccination Policy. Such policy must require vaccination of all employees, including new employees as soon as practicable, other than the following groups: (1) employees for whom a vaccine is medically contraindicated; (2) employees for whom medical necessity requires a delay in vaccination; or (3) employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs that conflict with the vaccination requirement.

The employer must then determine the vaccination status of each employee and maintain a record of each employee’s vaccination status.

Does the OSHA ETS Permit Employers to Maintain a More Stringent Vaccination Policy?

Yes. The OSHA ETS establishes “minimum requirements” that employers must meet and implement. OSHA specifically noted that nothing in the ETS prevents employers from agreeing with workers and their representatives to additional measures not required by the OSHA ETS. The OSHA ETS also does not supplant any collective bargaining agreements that may have negotiated terms exceeding the requirements of the ETS.

What Support Must Covered Employers Provide to Employees for Vaccination?

The covered employer must provide time for vaccination and time for recovery. Specifically, the employer must provide a reasonable amount of time for each employee to receive their doses, including up to 4 hours of paid time. The employer must also provide reasonable time and paid sick leave for an employee to recover from any side effects after vaccination.

What is Required of Employees Who Are Not Fully Vaccinated?

An employee who is not fully vaccinated and reports to the workplace at least once every 7 days must: (1) be tested for COVID-19 at least once every 7 days; and (2) must provide documentation of the most recent COVID-19 test to the employer no later than the 7th day following the last test result.

An employee who is not fully vaccinated and does not report to the workplace for a period of 7 or more days must: (1) be tested for COVID-19 within 7 days prior to returning to the workplace; and (2) must provide documentation of the test result to the employer upon return to the workplace.

If an employee does not provide documentation of a COVID-19 test result, the employer must keep the employee removed from the workplace until the employee provides a test result.

Employees who are not fully vaccinated must wear face coverings while indoors.

Employers are not required to pay for any costs of testing under the OSHA ETS. The OSHA ETS notes, however, that other laws, regulations, or collective bargaining agreements may impose different requirements. Similarly, nothing prevents an employer from choosing to pay for testing costs.

Must Fully Vaccinated Employees Still Wear a Face Covering in the Office?

No. Under the OSHA ETS, employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes. An employee who is not fully vaccinated is exempted from wearing a face covering only (1) when the employee is alone in a room with floor to ceiling walls and a closed door; (2) while the employee is eating or drinking, or for identification and security purposes; (3) when the employee is wearing a respirator or facemask; and (4) when the use of face coverings is infeasible or would create a greater hazard. The face covering must be worn to fully cover the nose and mouth, and must be replaced when damaged.

While the OSHA ETS does not impose a requirement that fully vaccinated employees wear a face covering, an employer cannot prevent a fully vaccinated employee from voluntarily wearing a face covering. Additionally, state and local health orders may impose stricter requirements with regards to face coverings for fully vaccinated employees.

When Does the OSHA ETS Go Into Effect?

The OSHA ETS was officially filed in the Office of the Federal Register on November 4, 2021, and it became effective when it was published on November 5, 2021. Covered employers are required to comply with the OSHA ETS within 30 days after the effective date: December 5, 2021. However, the requirement of testing of employees who are not fully vaccinated does not begin until 60 days after the effective date: January 4, 2022.

How Does the OSHA ETS Relate to the Federal Contractor Executive Order?

The OSHA ETS does not apply to any employer already covered by the Federal Contractor Executive Order. Employers do not need to worry about being subject to two competing regulatory requirements.

The Federal Contractor Executive Order was issued on September 9, 2021. President Biden issued a new Executive Order requiring that parties under contract with the Federal Government provide adequate COVID-19 safeguards to their workers. The Order, which became effective on its issue date, applies to any new contract, extension or renewal of an existing contract, or exercise of an option on an existing contract, if entered into on or after October 15, 2021.3 It also established a Safer Federal Workforce Task Force (the “Task Force”), which is responsible for developing the specific guidance for the COVID-19 safeguards that are required to be implemented by federal contractors or subcontractors. On September 24, 2021, the Task Force accordingly released guidance requiring all federal contractors and subcontractors, regardless of the number of persons they employ, to: a) ensure all employees are vaccinated for COVID-19 (except in limited circumstances where accommodations are legally required); b) additionally require their employees to comply with safety protocols related to masking and physical distancing; and c) designate a coordinator of COVID-19 workplace safety. Under the rules any full-time or part-time employee of a “covered contractor” working on or in connection with a “covered contract” or at a covered contractor workplace will be affected.

After the OSHA ETS was issued, the White House announced that the compliance date for the Federal Contractor Executive Order would be delayed from December 8, 2021 to January 4, 2022 to line up with requirements for the OSHA ETS.

We Can Help You

Throughout the pandemic, BFKN has been at the forefront of advising and counseling clients through workplace issues related to COVID-19. Please get in touch to discuss your specific employment questions related to COVID-19 vaccination, such as those involving whether your organization is covered under the OSHA ETS or other mandates, the mechanics of administering a mandatory vaccination program, and how to analyze exemption requests under the evolving administrative guidance. We are also available to discuss your other business needs.

1 OSHA, COVID-19 Vaccination and Testing Emergency Temporary Standard (Nov. 4, 2021), available online at https://public-inspection.federalregister.gov/2021-23643.pdf

2 BST Holdings, LLC v. OSHA, No. 21-60845 (5th Cir. Nov. 6, 2021), available online at https://www.ca5.uscourts.gov/opinions/unpub/21/21-60845.0.pdf

3 Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Sept. 9, 2021), available online at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/

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