You likely remember that President Biden announced in September that all private employers with 100 or more employees would soon be required to ensure their workers were vaccinated or tested at least weekly for COVID-19. To accomplish that goal, Biden directed the Occupational Safety and Health Administration (OSHA), which governs safety in most workplaces, to issue an Emergency Temporary Standard (ETS). Yesterday, the much-anticipated ETS was released. If you’re a glutton for punishment, you can read the full 490-page rule here.

What Employers are Covered?

Private employers with 100 or more employees firm- or corporate-wide. In states with OSHA-approved state plans (not Oklahoma), state- and local-government employers with 100 or more employees are also covered. Federal contractors, federal agencies, employers in healthcare settings, and employers with less than 100 total employees are not covered. For the purpose of meeting the 100-employee threshold, part-time and temporary/seasonal workers are counted if they are actually employed at any point in time while the ETS is in effect. Independent contractors are not counted.

What Employees are Covered?

It’s easier to say who’s not covered. The ETS does not apply to employees who (1) work exclusively outdoors, (2) work from home, or (3) don’t have a physical workplace where other individuals are present (in other words, they might go to work, but they work entirely alone at that location). Otherwise, any employee of an employer described above is subject to the rule.

What is Required?

The ETS requires covered businesses to develop, implement, and enforce a mandatory written COVID-19 policy that EITHER (1) requires employees to get fully vaccinated against the virus, OR (2) requires employees who aren’t fully vaccinated to get weekly COVID-19 tests and wear a face covering at work (unless face coverings cause a severe workplace hazard). To fulfill this requirement, employers necessarily need to request and obtain acceptable documentation of each employee’s vaccination status, keep a roster of same, and provide that information employees upon request.

Stated another way, the ETS’s primary requirement for employers is this: every covered employee must either be fully vaccinated or, if they are not fully vaccinated, be subject to regular (generally weekly) testing and mask-wearing requirements. Employers can implement a policy that permits either option for their employees or employers could choose to mandate that all employees get vaccinated and take disciplinary action against those who do not. In any case, employees who have certain valid medical excuses or are entitled to reasonable accommodations for disabilities or sincerely held religious beliefs would be exempted from any employer-imposed vaccine mandate, in which case they would generally be required to comply with the testing and mask requirements.

For those employees who get vaccinated, employers must provide up to 4 hours of paid leave for each dose and also provide “reasonable” time and paid sick leave for employees to recover from any vaccine side effects. But for employees who were already vaccinated before the ETS, the rule is not retroactive and employers need not provide paid leave or reimburse employees for past vaccinations. Additionally, if an employee gets a vaccine outside of work hours (as opposed to during work hours), employers are not required to pay them for the time spent doing so. The maximum 4 hours of paid time for each vaccine dose is separate from and in addition to any other paid leave provided by the employer, and employees cannot be required to use sick leave or vacation time in lieu thereof. Paid time off available under the employer’s existing leave policies may be utilized for time an employee needs to recover from vaccine side effects, but the employer must provide additional leave for this purpose if an employee has no such leave available.

For those employees who are not fully vaccinated, employers must ensure that they are tested for COVID-19 at least weekly (if they are in the workplace at least once per week) or within 7 days before returning to work (if they are away from the workplace for a week or more). Employers must keep a record of every test for every unvaccinated employee. Unvaccinated employees who test positive for COVID-19 are exempt from these testing requirements for 90-days thereafter. Under the ETS, employers are not required to pay for COVID-19 testing, but they may choose to do so. (Note that this may conflict with previous DOL guidance that employers should pay for testing time if they require that employees be tested for COVID-19. The ETS acknowledges, however, that other federal, state, and local laws or regulations and private agreements may require employers to pay for testing. And there may be some employers who resist paying for employee testing as an additional means of encouraging vaccination, arguing that they are not requiring testing because the employee could choose to get vaccinated instead.) Unvaccinated employees are additionally required to wear a face covering when indoors or in a vehicle with another person.

All employees are required to promptly notify their employer if they test positive for or are diagnosed with COVID-19. Employers must immediately remove from the workplace any employee (regardless of vaccination status) who is diagnosed or tests positive and prohibit them from returning until certain criteria are met.

Employers must also provide all employees with information regarding their COVID-19 vaccination/testing policy and procedures, protections against retaliation and discrimination, criminal penalties for supplying fake documents or false information, and CDC resources about the safety and efficacy of vaccines. When requested by an employee, employers must also provide information regarding the number of fully vaccinated employees and the total number of employees at the workplace.

Employers have additional reporting requirements to notify OSHA within 8 hours of learning about a work-related COVID-19 fatality and within 24 hours of learning about a work-related COVID-19 inpatient hospitalization.

When Does it Take Effect?

The ETS, which goes into effect today, allows employers a 30-day window, until December 5, 2021, to comply with all of the above-mentioned requirements other than the actual testing of unvaccinated employees. The ETS gives employers an additional 30 days, until January 4, 2022, to comply with the testing requirement for unvaccinated employees. In effect, this allows currently unvaccinated employees until January 4 to get fully vaccinated before the weekly testing requirement starts.

OSHA anticipates that the ETS will be in effect for 6 months from the date of publication. Employer penalties for each instance of non-compliance (potentially, per employee) with any ETS standard are up to a maximum of $13,653 for serious violations and $136,532 for willful or repeated violations. The consequences are severe if employers fail to adhere to these requirements.

Where Can I Find More Information?

OSHA has created a website dedicated to the ETS, which contains the rule itself as well as guidance and additional resources including a webinar, Fact Sheets, FAQs, and written policy templates.

What Now?

Oklahoma’s Attorney General, along with those of six other states, has already filed a lawsuit challenging the rule. Other challenges may be coming. But for now, the rule remains in place and covered employers are advised to comply by the deadlines set forth or risk hefty fines.

By Rebecca D. Bullard, rbullard@dsda.com