Megan Butz, General Counsel for HR Compliance at Checkwriters, details the OSHA COVID-19 ETS and provides considerations for employers in selecting and implementing a workable policy under this new framework. For summary information about the ETS, see our prior post >
UPDATE: On December 17, the Sixth Circuit Court of Appeals lifted the stay on the OSHA vaccine-or-test mandate (the Emergency Temporary Standard, or ETS), which applies to employers with 100 or more employees. This decision is already being appealed, and the ETS could be put on hold once again. Lifting of the stay means that the ETS is in immediate effect and employers should prepare to comply. The first compliance deadline was December 6 (for policies, notices, masking, vaccination status, etc.), and employers were supposed to begin testing unvaccinated employees by January 4. However, OSHA recognizes that compliance in such a short time frame is not feasible for many employers, so has said the following about enforcement:
“To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
The OSHA COVID-19 Emergency Temporary Standard (ETS) published on November 5, 2021, is only the 11th such ETS issued in OSHA’s 50-year history. The ETS will remain in effect for 6 months until on or about May 5, 2022, at which time a determination will be made whether to make the ETS permanent, lest it expire. Public Comment regarding permanence of the ETS is due by December 5, 2021 with OSHA soliciting feedback on areas including feasibility and extension of the ETS to employers with less than 100 employees; how the scope of the ETS would be adjusted to comport with the reduced “significant risk” criteria for permanent standards as opposed to “grave danger” required of an ETS; whether workers previously infected and possessing a natural immune response would be permitted to be excepted from vaccination or testing and face covering requirements and the scientific criteria used to determine same; and employer experience with COVID-19 vaccination policies, among others.
Across 490 pages, OSHA lays out its case for one of the most expansive emergency worker safety initiatives ever issued, covering over 80 million Americans. Employers with 100 or more employees (employer-level, not by location) must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Employers must produce a copy of such policy upon request by OSHA. The Secretary of Labor, pursuant to the OSH Act, has made a determination that COVID-19 presents a “grave danger” to unvaccinated workers (as subjects contracting the virus and as vehicles transmitting the virus to others), and that an emergency standard is necessary to combat such danger to protect worker safety.
The latest: Court blocks ETS for now, but employers should still prep for compliance
UPDATE: The Fifth Circuit Court of Appeals has reaffirmed the temporary stay previously issued on November 6, 2021, now permanently blocking OSHA from implementing and enforcing its COVID-19 ETS until further order of the court.
The ETS preamble and commentary throughout the publication goes to painstaking detail to defend that determination and establish, and reestablish OSHA’s legal authority for issuance-no doubt in an attempt to fortify itself against the onslaught of legal challenges which loom on the not-so-distant horizon.
Please see the following relevant compliance dates for the OSHA ETS released by OSHA in its recent set of FAQs:
Covered employers will be faced with a difficult choice: to adopt a mandatory vaccination policy for all employees, and risk immediate and potentially significant employee exodus for those that elect not to be vaccinated or adopt a policy which provides a testing and face covering alternative, and still potentially suffer significant employee attrition, if only more insidiously over time. Considerations for employers are discussed below.
Mandatory vaccination policy
Employers who choose to implement a mandatory vaccination policy with no testing alternative must ensure that each employee is vaccinated by January 4, 2022, with the exception of those employees who fall into one of three narrow categories: (1) employees for whom vaccine is contraindicated medically; (2) employees which require delayed vaccination due to medical necessity, or (3) those employees who are legally entitled to a reasonable accommodation on the basis of disability or sincerely held religious belief. Employers should carefully review the recently released EEOC guidance on handling religious exemption requests from vaccination (READ: EEOC updates guidance for employers: religious exemptions and COVID-19 vaccine mandates).
*There are also some select groups of employees who are not subject to the ETS such as those who work remotely 100% of the time, those who work exclusively outside, or those who do not report to a workplace where other individuals are present.
Any employees who remain unvaccinated after the January 4, 2022, deadline and who do not belong to one of these exceptions, puts the employer in violation, and may subject the employee to discipline up to and including termination.
Employers under both types of policies are required to determine the vaccination status of each employee and to keep a roster of the vaccine status of all employees. Employers under both policies should be diligent and organized in their recordkeeping as under the ETS, employers are required to provide OSHA with the aggregate number of fully vaccinated employees along with the total number of employees at the workplace within 4 hours of OSHA’s request for same. Upon a request by an employee or employee representative, an employer must also provide this aggregate vaccination information to the employee or employee representative by the end of the next business day after that employee or employee representative’s request. Employers under both types of policies are also required to provide information to employees on the following topics:
- Requirements of the ETS and the policies and procedures the employer has implemented to comply with same;
- CDC’s document, “Key Things to Know About COVID-19 Vaccines,”;
- Requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act and how those provisions work together to protect employees from retaliation for engaging in OSHA protected activities; and
- The importance of providing truthful information about vaccine status and test results including an explanation of the criminal consequences which may exist under OSHA or other federal law for falsifying information.
Employers are also required to elicit proof of vaccination from each employee. Proof of vaccination can be established through:
- “[T]he record of immunization from a health care provider or pharmacy;
- A copy of the COVID-19 Vaccination Record Card;
- A copy of medical records documenting the vaccination;
- A copy of immunization records from a public health, state, or tribal immunization information system; or
- A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
- A signed and dated employee attestation* is acceptable in instances when an employee is unable to produce proof of vaccination.”
*A personal attestation must include a statement by the employee that the information is true and accurate and the employee understands that the provision of knowingly false information in the context of the vaccine attestation may subject them to criminal penalties.
The ETS preamble describes OSHA’s authority to require employers to bear the costs of particular provisions of a standard as being “solidly grounded in the OSH Act. . . and the costs of compliance with the Act and OSHA standards are part of the cost of doing business and OSHA may foreclose employers from shifting those costs to employees.” Accordingly, under the ETS, OSHA has made employers responsible for the costs of vaccination, including paid leave to accommodate vaccination and reasonable paid time off for vaccination recovery. The actual cost of vaccination is $0.00 for the employer as vaccine is provided at no charge by the federal government. “Although the ETS does not require all covered employers to implement a mandatory vaccination policy, OSHA expects that employers that choose that compliance option will enjoy advantages that employers that opt out of the vaccination mandate option will not.” Some of these advantages are reduced absenteeism due to illness, and therefore a reduction in loss of productivity, as well as less administrative costs associated with testing and face covering compliance.
Employers should remain mindful that the science surrounding transmissibility and break-through infections for the vaccinated population is still developing, and employers should consider vaccination as a possible means to reduce rather than eradicate employee infection and illness.
Employers should also anticipate that they may suffer significant upfront costs in the loss of valuable members of their workforce who will not submit to vaccination, and who do not qualify for medical or religious exemptions. Nonconforming employees will subject an employer to penalties, ultimately leading to that employee’s resignation or termination. A recent Gallup poll article published on October 29, 2021, shows that “30% of all U.S. workers are strongly opposed to employer vaccine requirements, and of these, 52%–equivalent to 16% of all U.S. workers–say they would be ‘extremely likely’ to look for a job with a different organization if they disagreed with their employer’s policy on vaccine mandates.” This contrasts with “45% of U.S. workers [who] strongly favor employer vaccine requirements,” and of these, 33%–equivalent to 15% of all U.S. workers, say “they are extremely like to look for a different job over disagreements about employer vaccine policy.”
Vaccination or testing and face covering policy
For those employers that elect a policy which accommodates a testing and face covering option for unvaccinated employees, covered employees must submit to testing once every 7 days and provide verification of a negative COVID-19 test result no later than the 7th day following the date of the last result received. Employees may not report to work without providing a negative test result each week. Employers must retain all testing results for employees as confidential medical records for at least during the time period that the ETS remains in effect. The ETS defines an acceptable COVID-19 test as follows:
“A ‘COVID-19 test’ means a test for SARS-CoV-2 that is: (1) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3) 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 and processing is either done or observed by an employer.”
The types of tests which meet these criteria and are most well-known to the general public include:
- NAATs (nucleic acid amplification tests) such as RT-PCR tests which have a high accuracy rate, and typically take 24-48 hours of processing time to receive results; and
- Antigen tests most often performed at point of care entities such as a doctor’s office or urgent care center. These are considered “rapid tests” with results usually within 15-30 minutes and are considered less reliable than RT-PCR tests. Included in this category are Over-the-Counter (OTC) self-administered and self-read tests that are available at local pharmacies and other retail locations.
Employees may only use OTC testing kits if the self-administration and reading of the test is observed by the employer or an authorized telehealth proctor. As recognized in the commentary of the ETS, where testing is done in the presence of the employer during normal working hours, this will likely implicate compensable time issues under the FLSA. However, OSHA disclaims any responsibility for definitive guidance on the matter, stating, “[t]he subject of payment for the costs associated with testing pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.”
The ETS requires all persons who are not fully vaccinated (unvaccinated or partially vaccinated) to wear a face covering indoors or when occupying a vehicle with another for work purposes, except, “when an employee is alone in a room with floor to ceilings windows and a closed door. However, if that employee exits the room or another individual enters the room, they are required to wear a face covering.” Employees may also remove their face coverings for a limited time while eating of drinking at the workplace or for identification purposes in accordance with employer safety and security requirements. The ETS does not require employers to pay for any costs associated with face coverings, but also does not prohibit same.
In contrast to OSHA’s requirement that employers assume the cost of vaccination for their workforce, OSHA has decided to exercise its discretion in abstaining from requiring employers to pay for testing or face coverings for employees who choose to remain unvaccinated, commenting: “OSHA only requires employers to bear the costs of employee compliance with the preferred, and more protective, vaccination provision, but not costs associated with testing. The agency does not believe it appropriate to impose the costs of testing or face coverings on an employer where an employee has made an individual choice to pursue a less protective option.” OSHA takes the limited position that employers will not be required to pay for testing and face coverings, unless required pursuant to other law or collective bargaining agreement. Accordingly, employers implementing a vaccination policy with a testing and face covering option should carefully review and consult with employment counsel in their state to discern if a payment obligation exists relative to testing costs.
“Who pays” may ultimately become a negotiation between employers and their workforces or employers could decide to pass on the entirety of testing costs to their employees for electing to remain unvaccinated if permitted by state or other law. OSHA opines that employers may choose to pay for some or all of the costs of testing as “an inducement to keep employees in a tight labor market.” Employers should take the temperature of their workforce both as to the potential financial impact of testing on employees who elect it, as well as the cost of not providing a testing option for employees who desire it. Employers already struggling in the “Great Resignation” may decide to heed the advice of OSHA and subsidize or fully assume the cost of testing in order to keep valuable members of their workforce at work, especially as employees may soon begin to feel the squeeze of the testing market.
Previous federal guidance required health plans and insurers to cover the cost of testing for asymptomatic individuals without requiring them to submit to a medical examination and without known or suspected COVID-19 exposure, meaning that many persons were able to have their testing costs covered by insurance. An important qualification to this guidance is especially relevant now: this guidance does not extend to “public health surveillance or employment purposes.” Therefore, it is likely that the total cost of testing will fall on the employee as an out-of-pocket expense. A 2020 study performed by the Peterson-KFF Health Tracker, showed 203 distinct prices for COVID-19 diagnostic tests from 93 hospitals in fifty states (including Washington, D.C.) ranging from $20.00 to $1,419.00 per test, with a median test cost of $149.00. Yet, vaccination is available nationwide at no cost. The Over-the-Counter option ranges from $15.00 to approximately $24.00 (2 pack) depending on brand. By contrast, in Europe and the United Kingdom, the cost of a COVID-19 test is often free or can cost as little as $1.00.
For employees submitting to weekly testing, OTC testing is likely the most cost-efficient option. However, the employee must work for an employer wiling to proctor the test each week- or the employee must arrange a telehealth proctor to do so, and an employee must be able to regularly purchase the tests for use.
While OSHA found the ETS technologically feasible after “thoroughly review[ing] current and future projections of the availability of COVID-19 tests, testing supplies, and laboratory capacity”, supply chain issues which have been plaguing the country in recent months, has made accessing OTC tests very difficult. Recent reporting by KFF on November 4, 2021, has found that supply chain issues coupled with the stringent regulatory framework for approval for at-home tests by the FDA (which has limited the number of approved manufacturers) has intensified scarcity. Scarcity of at-home tests will force employees to submit to point-of-care or hospital- based testing at increased costs, at least temporarily. While OSHA touts the increased sufficiency of laboratory capacity, laboratory tests are the most expensive option for employees, and for those hourly wage workers, or with modest salaries, it may eventually price them out of a testing option, or could even push them below state or federal minimum wage. Then again, this may be the intention of the ETS to begin with, especially if it projects that “75.3 million (89.4 percent) of covered employees will be vaccinated when the ETS is in full effect,” as compared to . . .“approximately 6.3 million [7.5% of] covered employees who will be tested for COVID under the ETS”.
OSHA comments in the ETS “[b]ecause employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.” (emphasis added). Employees who are opposed to vaccination and who are modest earners will find themselves presented with a Hobson’s choice: submit to vaccination or risk potentially significant financial strain by avoiding it.
Therefore, despite trying to ameliorate the harshness of a blanket vaccine mandate, some employers may find themselves with significant employee attrition anyway, if only by a drip rather than a potential gush.
In a press briefing released by the White House on November 3, 2021, one senior administration official recently commented, “[a]nd just keep in mind that the OSHA rule coming out is not a mandate for a vaccine; there’s a — employers can put in a mandatory vaccination program, or there’s the other route of vaccination for those who choose to, and testing and masks for those other employees that don’t. So, just wanted to make sure that was clear.” (emphasis added). Ultimately, a testing option that employees can’t afford or can’t access is a mandate in fact, if not in name. Employers should remember that the ETS is temporary, and it is difficult to speculate what, if any, permanent standard entails in May 2022 when the ETS expires, or if the pending legal challenges carry the day before the ETS can really have an impact. With that in mind, employers should take stock of both the human and financial costs which could result with implementation of each type of policy in order to mitigate risk.