November 15, 2021
By Kasia Kokoszka
Kasia is a member of the firm’s Construction Law Department. She can be reached at 612.359.7601 or firstname.lastname@example.org
As of November 5, 2021, the Emergency Temporary Standard (ETS) issued by OSHA requires private employers with 100 or more employees to ensure that their employees are vaccinated against COVID-19 or undergo weekly testing and wear a face covering. The ETS has been met with legal challenges, and is currently subject to a nationwide stay of enforcement. Compliance with the ETS is not a minor undertaking, and employers should familiarize themselves with its requirements in case the stay is partially or wholly lifted. This Briefing Paper discusses key points of the ETS that employers need to consider to determine how they will comply with this mandate.
The ETS gives employers until December 5, 2021 to comply with most of the requirements, except the requirement that employees are either fully vaccinated or tested on a weekly basis which is mandatory on January 4, 2022. The effective date of the ETS in your state also depends on whether OSHA enforcement is federal or through a state agency. Federally administered OSHA states include Wisconsin, North Dakota, and South Dakota, where the ETS went into effect immediately on November 5, 2021. In contrast, in Minnesota, the state agency has 30 days to adopt the ETS or a standard at least as effective. The ETS is currently subject to a nationwide stay due to a decision from the Fifth Circuit Court of Appeals, but the compliance dates may not change if the stay is partially or wholly lifted.
Private employers with more than 100 employees are subject to the ETS, with limited exceptions. The threshold of 100 employees includes employees across all U.S. locations, regardless of whether they perform their work on different job sites. Part-time employees and remote workers count towards the total, whereas independent contractors do not. The ETS specifically addressed multi-employer job sites, such as construction sites, and indicated that each separate employer would only need to count its own employees to determine if they had to comply with the ETS. For example, the employees of a subcontractor who are working on the same job site as the general contractor’s employees would be counted separately for purposes of the ETS.
Some employees may be exempt from the requirements of the ETS based on narrow exceptions, including employees who do not report to a workplace where other customers or employees are present, employees who work remotely, and employees who work exclusively outdoors. Importantly, any exempt employees would still count towards the 100 employee threshold to determine if the employer is subject to the ETS.
Of particular interest to employers in the construction industry is the outdoor work exception. The outdoor work exception does not apply if outdoor time is interrupted by periods of work performed indoors. The ETS specifically discussed the example of a construction site and indicated that the outdoor work exception would not apply if employees also performed work in a partially completed structure, spent time in a construction trailer, or shared vehicles. Employers would need to evaluate carefully whether the outdoor work exception applies.
Employers will be required to ensure that their employees are fully vaccinated against COVID-19 or undergo weekly testing as of January 4, 2022. The ETS specifies which types of vaccines and COVID-19 tests are acceptable for meeting its requirements. While the ETS does not require employers to pay for COVID-19 testing, states such as Minnesota currently require employers to pay for the cost of a COVID-19 test when an employer requires an employee to obtain a test to work. Because the ETS makes testing an alternative option to vaccination, it is unclear whether employers will be responsible for covering the cost of COVID-19 testing under Minnesota law if employees choose not to get vaccinated. Not surprisingly, many employers are currently contending they will not be required to pay for testing because they are not requiring employees to choose that option under the ETS, while employees are claiming otherwise. Both sides are waiting for guidance from Minnesota OSHA. Nevertheless, communicating the employer’s COVID-19 policy promptly will assist in providing sufficient time for employees to either obtain full vaccination in time for the January 4, 2022 deadline or determine testing options.
The ETS also imposes a series of obligations beyond requiring mandatory vaccination or testing for COVID-19, which will be required as of December 5, 2021, and include:
a. Written Employer Policy on Vaccination or Testing for COVID-19
Employers are required to develop, implement and enforce a written policy requiring employees to either be fully vaccinated against COVID-19 or undergo weekly testing for COVID-19 and wear a face covering. The ETS also requires employers to inform employees of any policies or procedures established to implement the ETS, and employers should consider the logistics of how they will communicate their policies and procedures to employees by the December 5, 2021 deadline.
b. Employee Roster of Vaccination Status and Proof of Vaccination
The ETS also requires employers to determine the vaccination status of each employee and maintain records showing proof of vaccination. Any employee who fails to produce proof of vaccination should be presumed to be not fully vaccinated.
The employer must also maintain a roster of each employee’s vaccination status. The roster should indicate whether the employee is unvaccinated, partially vaccinated, fully vaccinated, presumed unvaccinated, or unvaccinated and requested a medical or religious accommodation. The employer must also maintain records showing proof of vaccination based on the acceptable forms of documentation. The records and roster are considered employee medical records and must be appropriately maintained as such.
Acceptable forms of proof are defined by the ETS, and can include an immunization record from a health care provider, a copy of a vaccination card, and other types of official documentation. If an employee is unable to provide proof of vaccination, they may provide a signed statement attesting to their vaccination status if it meets certain requirements established in the ETS, including an acknowledgment that providing false information can subject the employee to criminal penalties.
c. Paid Time Off for Vaccination and Sick Leave for Side Effects
Employers must provide a reasonable amount of time for employees to receive each vaccination dose. Employees are also entitled to up to 4 hours of paid time, which can include travel time, to receive a vaccination dose. The employer must also provide reasonable time and sick leave for employees to recover from side effects following administration of the vaccine.
d. Information on the ETS and Vaccination
The ETS also requires employers to provide information on the requirements of the ETS to its employees in a language and at a literacy level that the employee understands, including any employer policies and procedures established based on the requirements of the ETS. Employers are also obligated to provide information on COVID-19 vaccination and distribute the CDC’s “Key Things to Know About COVID-19” document to its employees, among other information requirements which can be found in the ETS.
e. Reporting Obligation for COVID-19 Hospitalizations or Deaths
Employers are also required to report any work-related COVID-19 employee deaths within 8 hours of learning about it and report any work-related COVID-19 hospitalizations within 24 hours of learning about it to OSHA.
f. Record Keeping Requirements
The employer should be prepared to maintain accurate records of their compliance with the ETS, including their written policy on COVID-19, the vaccination status of its employees, all COVID-19 vaccine documentation and all COVID-19 test results. In case of an OSHA enforcement action, employers may have short windows of time to produce the requested documentation, including as little as 4 hours to produce the written policy and aggregate numbers of fully vaccinated employees.
Employees may not be required to comply with a mandatory vaccination policy if they are unable to be vaccinated because of medical reasons or if they are entitled to a reasonable accommodation based on a disability or sincerely held religious beliefs. Similarly, if the employer chooses to offer the option of weekly testing for COVID-19 and requires a face covering, employees may also be entitled to a reasonable accommodation based on disability or a sincerely held religious belief. Employers should be prepared to have a process in place for evaluating accommodation requests.
Noncompliance can lead to OSHA citations and penalties of up to $13,653 per violation, with no clear limitation as to whether the penalties would be imposed by work site or by employee. The provisions of the ETS were intentionally drafted to make clear OSHA’s authority to separately cite employers for each instance of noncompliance. Both employees and employers may be subject to criminal penalties for knowingly supplying false information, statements, or documentation.
This Briefing Paper contains an overview of the main requirements imposed by the ETS, and employers are rightfully concerned about its legal and practical aspects. Even in the face of uncertainty about the enforceability of the ETS, any compliance costs are not wasted. Vaccine-or-test mandates are likely to be urged even if not required while the COVID-19 pandemic is ongoing. Readers are encouraged to contact counsel regarding any specific questions related to ETS requirements or compliance.
Rob Smith will be presenting “AIA Contract Documents: Interpreting, Negotiating, and Modifying” on Tuesday, December 07, 2021, through the National Business Institute. For more information about the program, including how to register, visit NBI’s website here.
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This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2021 FWH&T