Today, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to ensure that their employees who report to a workplace are vaccinated against COVID-19 or that unvaccinated employees who report to a workplace submit to weekly COVID-19 testing. In addition, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule requiring health care workers at facilities participating in Medicare and Medicaid to be fully vaccinated. Employees that fall under the ETS or CMS interim final rule must complete a primary vaccination series by January 4, 2022 or become fully vaccinated thereafter to satisfy the vaccination requirements of those rules. Additionally, the deadline for covered federal contractor employees to be fully vaccinated has also been moved from December 8, 2021 to January 4, 2022 to align with the deadline of the OSHA ETS and CMS interim final rule. The White House estimates that the OSHA ETS and the CMS interim final rule will impact more than 101 million workers.
As noted above, the ETS, which OSHA released with several guidance resources, requires employers with 100 or more employees organization-wide, determined at the time the ETS is in effect, to implement a written policy that either requires employees to be fully vaccinated or requires employees who are not fully vaccinated to provide results of weekly COVID-19 testing and wear a face covering. The ETS targets large employers because OSHA is confident that these employers have the administrative capacity to promptly implement the requirements of the ETS.
The ETS generally applies to employers in all workplaces under OSHA’s authority and jurisdiction, including manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime and healthcare. However, it does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services that are subject to the requirements of the CMS interim final rule.
Notably, the ETS' testing requirements for unvaccinated employees do not apply to employees who do not report to a workplace where coworkers or other individuals are present, employees while they work from home, or employees who work exclusively outdoors. However, the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace.
The ETS will become effective immediately upon its publication in the Federal Register on November 5, 2021. Within 30 days of publication of the ETS, or by December 5, 2021, employers must ensure all provisions of the ETS other than the testing requirements for unvaccinated workers (including, but not limited to establishing a policy on vaccination/testing, determining the vaccination status of each employee, and following recordkeeping requirements) are addressed in the workplace. And within 60 days of publication, or by January 4, 2022, employers must implement testing requirements for employees who are not fully vaccinated.
OSHA is still assessing the capacity of smaller employers and is seeking comment to help determine whether smaller employers can implement the ETS’ requirements without undue disruption. OSHA is also seeking comment on all aspects of the ETS and prior to adoption as a final standard. OSHA may revise or update the ETS as risk levels and available preventive measures evolve.
Covered employers must provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, including travel time. They must also provide reasonable time and paid sick leave — with the ETS not specifying an amount — to recover from side effects experienced following each dose.
Employers must also determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. These records are considered to be employee medical records and must be maintained as such in accordance with OSHA regulations and other applicable federal law.
Each employee who is not fully vaccinated must test for COVID-19 weekly if the employee is in the workplace at least once a week. If an employee is away from the workplace for a week or longer, the employee must test for COVID-19 within seven days before returning to work. Notably, if an employee receives a positive COVID-19 test, employers must ensure the employee is removed from the workplace as further explained below and may not require the employee to submit to weekly testing for 90 days following the positive test.
The ETS does not require employers to pay for any costs associated with the testing required under the standard. But employers may be required by other laws, regulations or collective bargaining agreements to pay for testing. Covered employers may also voluntarily assume the costs associated with testing, and may have payment obligations if their policies require more frequent testing.
Covered employers must ensure that employees who are not fully vaccinated wear face coverings indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers are prohibited from preventing employees, regardless of vaccination status, from voluntarily wearing face coverings when doing so does not create a serious workplace hazard, such as interfering with the safe operation of equipment.
For employers who do not implement a wall-to-wall vaccine mandate for all employees, the requirements of the ETS for testing must be in place within 60 days of publication of the ETS, or by January 4, 2022. All employees who have not provided proof of vaccination must be tested at least every seven days (and the results must be provided within seven days of when the prior test was given). If an employee is away from the workplace for more than seven days, there must be a return-to-work test within seven days before returning to work, with results given no later than the day on which the employee returns to work.
As for the tests themselves, some vocabulary lessons are necessary. There are, broadly, two types of tests: one is to detect a recent or prior COVID-19 infection (the antibody test); the other test is a diagnostic test, and detects the presence of the virus. There are two types of diagnostic tests: a molecular test, also called the COVID-19 nucleic amplification test, or NAAT, and an antigen test. The ETS requires either a NAAT or an antigen diagnostic test. An antibody test is not part of the OSHA scheme.
There are currently two methods of diagnostic testing: nasal swab and saliva samples (spit into a vial). Many tests are in development by hundreds of labs, but the only tests that are acceptable for compliance with the ETS are tests that have been given an Emergency Use Authorization by the U.S. Food and Drug Administration, or FDA. Throat swab tests are in development but they do not yet have Emergency Use Authorizations by the FDA (but will be allowed upon the issuance of an FDA Emergency Use Authorization).
While over the counter tests (typically antigen tests) may be used, home-testing that is self-administered and self-read is not acceptable — the use of such a test must be observed by a person designated by the employer, which may be an authorized telehealth proctor.
There are price points for the different types of tests. The molecular test is relatively expensive, and a review of vendors indicates a typical price point of about $100 per test. The antigen tests are cheaper, and can be bought over the counter for about $23.00. The cheapest of all tests seems to be pooled tests, where samples taken from a number of employees are combined — if the test for the pool is negative, then everyone in the pool is deemed negative, but if the pool test is positive, then each participant in the pool has their own sample individually tested (the same sample that was pooled). There are vendors offering bulk sales of tests.
An employer may, under the ETS, cause the employee to undertake the expenses of the weekly tests, but some state and local laws may prohibit an employer from requiring an employee to pay for a medical test required by the employer (as may a collective bargaining agreement).
The testing must be documented, and records kept for the entire roster of employees, and made available to OSHA upon request. The testing records must be treated as confidential medical records.
Employer Response to Positive COVID-19 Tests and COVID-19 Diagnoses
Covered employers must require employees to provide prompt notice if they receive positive COVID-19 tests or diagnoses. If an employee tests positive, the employee must be removed from the workplace until one of the following occurs:
- If the positive test was an antigen test, a negative NAAT test may counter the positive antigen test.
- The employee follows the CDC Isolation Guidance, and under that guidance is clear to be with other individuals, that employee may return to work.
- A licensed healthcare provider clears the employee to return to work.
The ETS does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19. But other laws, regulations or collective bargaining agreements may require employers to provide paid time.
The ETS disallows retesting employees within 90 days of a positive result. This may seem paradoxical, but an OSHA representative explained during a White House public briefing on November 4, 2021 that testing within 90 days of a positive result may result in many false positives.
The ETS also requires covered employers to provide certain information to employees and comply with reporting and recordkeeping requirements.
Employers must provide employees the following information in a language and at a literacy level the employees understand:
- Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS.
- The CDC document “Key Things to Know About COVID-19 Vaccines.”
- Information about protections against retaliation and discrimination under the OSH Act.
- Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Employers must report work-related COVID-19 fatalities to OSHA within eight hours of learning about the fatalities, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. Additionally, for COVID-19 cases the ETS eliminates the provision that employers are only required to report a work-related COVID-19 fatality if it occurs within 30 days of exposure and a work-related in-patient hospitalization if it occurs within 24 hours of exposure. Under the ETS, there is no such temporal limitation, and employers must report the work-related COVID-19 fatality or hospitalization regardless of how long the period of time between the work exposure and the death or in-patient hospitalization.
Employers must also allow an employee and anyone with the employee’s written authorized consent to examine and copy the employee’s COVID-19 vaccine documentation and any COVID-19 test results. Furthermore, employers must provide an employee, or the employee’s representative, the total number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
In issuing the ETS, OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering or testing. The ETS also preempts states from adopting and enforcing workplace requirements relating to vaccination, testing, and face coverings, except under the authority of a state OSHA plan. Given that numerous suits have been filed challenging federal vaccine mandates for federal employees and federal contractors, and that at least two states have prohibited employers from requiring employees to be vaccinated, further legal challenges are expected.
CMS Interim Final Rule
CMS also issued an interim final rule requiring staff at health care facilities that participate in the Medicare and Medicaid programs to be vaccinated. The rule covers approximately 76,000 health care facilities, including hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities. The rule applies to all employees who interact with other staff, patients, residents, clients, etc. regardless of whether their positions are clinical or non-clinical and it includes employees, students, trainees and volunteers who work at a covered facility. Individuals who provide services 100 percent remotely and who do not have any direct contact with patients and other staff, such as fully remote telehealth or payroll services, are not subject to the vaccination requirements outlined in the CMS rule. The White House estimates that the rule will impact more than 17 million health care workers. View a list of frequently asked questions published by CMS here.
If you have any questions about these matters, please contact one of the Faegre Drinker professionals below for further details.
To learn more about OSHA's new standards regarding employee vaccinations, please join us for a webinar on the topic on Monday, November 8.