On November 5, 2021, OSHA will publish a new Emergency Temporary Standard (“ETS”) setting forth employee COVID-19 vaccination and testing requirements for employers with 100 or more employees. The ETS becomes effective immediately and requires employers to establish, implement, and enforce an acceptable vaccination policy by December 5, 2021.

Who is Covered by the ETS?

The ETS applies to private employers who are not covered by an OSHA-approved State Plan and who have 100 or more employees. The following workplaces are not covered: (1) workplaces covered under the Safer Federal Workforce Task Force guidance for federal contractors and subcontractors; (2) workplaces that are covered by OSHA’s healthcare ETS released earlier this year or the Centers for Medicare and Medicaid Services (CMS) rules; (3) workplaces with fewer than 100 employees total; and (4) public employers in states without OSHA-approved State Plans. Even for covered employers, the ETS will not apply to employees who do not report to a workplace where other employees or customers are present or employees who work exclusively outdoors.

Key Requirements of the Emergency Temporary Standard

Under the new rule, all employers with 100 or more employees at any time the ETS is in effect have two options:

• Implement and enforce a mandatory COVID-19 vaccination policy, or
• Implement and enforce a policy that requires employees to either (a) be fully vaccinated from COVID-19 or (b) undergo COVID-19 testing every 7 days and wear a face covering at work.

If an employer chooses to implement and enforce a mandatory COVID-19 vaccination policy, the only exceptions for the vaccine mandate can be: (1) a qualifying disability under the ADA that prevents the employee from receiving the vaccine; (2) a doctor recommendation that the vaccine be delayed due to a medical contraindication for the vaccine; or (3) a sincerely held religious belief that prevents the employee from receiving the vaccine.

Other key requirements for covered employers include:

• Proof of Vaccination Status – Employers are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Paid Leave – Employers are required to support vaccination by providing 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. OSHA presumes that if an employer makes available up to two days of paid sick leave per vaccine dose for side effects, the employer will be in compliance with this requirement.
• COVID-19 Testing – Employees who are not fully vaccinated must be required to provide a negative COVID-19 test every 7 days and must wear a mask covering their nose and mouth at work. The testing must be done using a FDA authorized COVID-19 test, and it cannot be both self-administered and self-read unless it is observed by the employer or an authorized telehealth proctor. Employers must maintain a record of each test result. The rule does not require that employers pay for testing.
• Reporting COVID-19 Cases - Employers must report employee work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the in-patient hospitalization and employee work-related COVID-19 fatalities within 8 hours of the employer learning about the fatality.

Effective Date and Compliance

By December 5, 2021, employers must implement their vaccination policy and provide paid time off for employees to receive a COVID-19 vaccine. Depending on the employer’s choice of vaccination policy (mandatory vaccination versus election), employees must either be fully vaccinated by January 4, 2022 or be subject to the 7-day testing requirements beginning January 4, 2022. Notably, a conflicting state or local law does not excuse compliance with the new rule for covered employers. Penalties for non-compliance are $13,653 for each “serious” violation and up to $136,532 for repeat or willful violations.

The new rule is expected to face numerous court challenges, which could delay its enforcement. The new rule is also currently open for public comment through January 4, 2022.

Burr & Forman will continue to monitor developments regarding the COVID-19 pandemic and will provide additional information about the OSHA Emergency Temporary Standard and vaccine mandates to keep our clients up to date on all of the applicable legal requirements. For more information about COVID-19 vaccination mandates and how they may impact your operations, please contact Amy Jordan Wilkes at awilkes@burr.com, Scott Williams at scwilliams@burr.com, Meghan Cox at mcox@burr.com, or the Burr & Forman attorney with whom you usually work.