Estimated reading time: 10 minutes
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) related to employee COVID-19 vaccinations. I’m sure you’ve seen articles about it. And I’m sure you’ve seen that some states are filing lawsuits about it.
Regardless of your views about the ETS, it’s important that organizations understand the basics about this standard. As a human resources professional, I’ve always felt it was important to have a solid working knowledge of requirements like this when they’re published because when things change (and you know they will), I’m in a good position to find the answers – either by visiting the agency website or speaking with individuals more knowledgeable than myself.
Which is exactly why I asked my friend and labor attorney Carrie Cherveny to join us for a conversation about the ETS and what employers should know. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, she works with clients to develop strategies that ensure compliance and risk mitigation when it comes to insurances such as health and welfare programs and employment practices liability. Carrie has been helping us throughout the pandemic to understand the matters that organizations need to consider.
And while Carrie is a lawyer, please don’t forget that her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed COVID questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
Carrie, thanks for being here. Let’s talk about the new OSHA ETS. What employers are impacted by this new rule?
[Cherveny] The ETS applies to all employers with a total of 100 or more employees except those covered by the healthcare Emergency Temporary Standard, the Centers for Medicare and Medicaid Services (CMS) vaccine mandates, and the Executive Order mandating vaccines for federal employers and contractors.
For an employer to be subject to the ETS, it must have 100 or more employees. Employers should include all full-time, part-time, seasonal, and remote/home-based U.S. employees employed on November 5, 2021. Notably, the headcount does not include independent contractors or staffing agency temporary employees. (As a side note, in scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.)
Employers that fall below 100 on November 5, but later increase in size will become subject to the ETS at the time that they reach 100 or more employees. Likewise, employers that are at 100 or more employees on November 5th – but fall below that number later (let’s say in January), that employer will remain subject to the ETS for the entire duration. The headcount should occur at the organizational/employer level, and not at the worksite or location. If there are two or more related companies that handle safety matters as one company, the employer should aggregate all employees.
Additionally, the headcount does not aggregate franchisors and franchisees. This means, for example, that each franchisee stands on its own and the headcount should include only the franchisee employees. Likewise, employees of multi-worksite employers are counted based on their separate employers. For example, a construction site often has multiple employers – each company represented would only need to count its own employees rather than the total number of workers at each site.
When does the new rule go into effect?
[Cherveny] The ETS is effective immediately upon publication in Federal Register November 5, 2021. But, employers have some time to get in compliance. There are two key deadlines in the ETS. The first deadline applies to all components of the ETS except for testing and the second applies only to testing:
DEADLINE #1: Employers must comply with most provisions by 30 days after the date of publication in the Federal Register (December 5, 2021):
- Determine whether each employee has been vaccinated, obtain proof of vaccination, keep records of each employee’s vaccination status, and keep a list of each employee’s vaccination status
- Develop, implement, distribute, and enforce a mandatory vaccination policy or a ‘vaccine or test’ policy compliant with all OSHA ETS requirements along with related notices and fact sheets
- Provide employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose
- Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes
- Be prepared for OSHA reporting requirements such as work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization
- Make required records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative (i.e., that employee’s vaccination or testing records, the aggregate number of fully vaccinated employees at a workplace, and the total number of employees at the workplace).
DEADLINE #2: Employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register (January 4, 2021):
- Implement testing requirements for a ‘vaccinate or test’ policy
- Have a program in place for testing resources
- Implement your organization’s testing protocols
The ETS mentions having a “vaccination policy”. What should organizations consider to be the basics of a workplace vaccination policy?
[Cherveny] The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. In other words, covered employers must develop and implement a policy that either: 1) mandates COVID-19 vaccines; or 2) allows employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.
Other policy considerations include:
Information provided to employees. The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand: 1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; 2) the CDC document ‘Key Things to Know About COVID-19 Vaccines’; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Paid time off. Employers must provide employees reasonable time (up to four hours of paid time) to receive each vaccination dose. Employers must also provide reasonable time (OSHA says 2 days may be reasonable) and paid sick leave to recover from side effects from the vaccine.
Face coverings for unvaccinated employees. Unvaccinated employees must wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
COVID-19 testing for unvaccinated employees. Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). While the ETS does not require employers to pay testing costs, employers should proceed with caution – the Fair Labor Standards Act (FLSA) and state equivalents have specific rules regarding the reduction and modification of pay for both exempt and non-exempt employees. Some states also have specific rules regarding passing along certain operational costs to employee. Employers that want to pass the testing cost along to employees should speak with outside employment law counsel.
COVID in the workplace. Employers must: 1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; 2) immediately have the COVID positive employee leave the workplace (regardless of vaccination status); and 3) ensure the employee remains out of the workplace until they meet the criteria for a return to work. Notably, unvaccinated employees who experience COVID and later return to work do not have to undergo weekly testing for 90-days but still must wear a face covering.
Availability of records. Employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Are there penalties or fines for non-compliance?
[Cherveny] Covered employers could face OSHA citations and penalties of up to $13,653 for each violation. Penalties increase when OSHA (or state OSHA) finds a willful or egregious failure to comply.
The Occupational Safety and Health Act (OSH Act) allows individuals to share their concerns directly with the agency (aka whistleblowers). If an employer or employee isn’t following the rules, can individuals express their concerns directly to OSHA?
[Cherveny] The OSH Act prohibits retaliation against employees for exercising their rights guaranteed under the Act, including filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.
An employer may not terminate and/or retaliate against an employee because the employee exercised any right under the OSH Act. For more information, readers can visit www.osha.gov/workers. A worker cannot be fired or discriminated against for filing a complaint with OSHA. Employees who believe they experienced retaliation may file a complaint at www.whistleblowers.gov or calling OSHA directly at 1-800-321-OSHA (6742).
To follow-up on our last question, if an employee is concerned about what’s going on, is there anything they might want to consider before contacting OSHA directly?
[Cherveny] Oftentimes, an employee’s perception and belief about an employer’s workplace decisions and polices is not entirely accurate. In my career I would say more than 75% of the cases I handled were based on a disconnect between the employee and employer.
If an employee has a concern – for example – that the employer is not following the rules of the ETS – then the employee should start by having an open and transparent conversation with the employer. HR should be sure to make itself available – not just with time but with a sincere desire to hear from the employees and genuinely understand their concerns. In other words, employees should bring their concerns to HR – providing facts, details, dates, witnesses, etc. and give HR/the company an opportunity to respond and resolve the issue. The dialogue between HR and employees can be enlightening for both parties and may achieve an insight and understanding that can avoid complicated (and sometimes expensive) and unnecessary disputes.
Last question, if employers or employees have additional questions about the ETS, where can they go to get answers.
[Cherveny] OSHA has developed vast and robust resources for employers and employees. Anyone interested in learning more can visit the OSHA COVID-19 ETS landing page for fact sheets, FAQs, and information regarding employee rights.
A HUGE thanks to Carrie for sharing her knowledge with us. HUB International has a COVID-19 and Vaccine Resource Center that you can refer to for additional information.
I wish I could say that there will not be any changes to this rule, but we all know that’s not going to happen. I do feel comfortable saying that we need to understand the foundation of this rule so we can help our organization today and in the future. As HR professionals, we need to know how to find reliable information, ask good questions, and offer the organization recommendations on the best way to move forward.
Image captured by Sharlyn Lauby while exploring the streets of Gainesville, FL