Federal Appeals Court Stays OSHA Requirement For Large Employers To Either Mandate COVID Vaccination Or Have Unvaccinated Employees Submit To Weekly Testing

By Swerdlow Florence Sanchez Swerdlow & Wimmer

November 16, 2021

On November 5, 2021, the federal Occupational Safety and Health Administration (“OSHA”) issued its emergency temporary standard (“ETS”) requiring most private employers with 100 or more employees to either mandate their employees be vaccinated or submit to weekly testing.  The Fifth Circuit Court of Appeals has twice temporarily blocked the ETS and is considering whether to issue a permanent injunction.  Although the fate of the ETS remains in limbo, covered employers should be prepared to implement the ETS in the event it is upheld.  

If the ETS is allowed to proceed, covered employers may be required to comply as soon as December 6, 2021.  This includes, as set forth further below: establishing a written vaccination policy; determining employee vaccination status; providing “reasonable” paid time off to receive and recover from the vaccine, and ensuring that unvaccinated employees follow masking requirements.  By January 4, 2022, all unvaccinated employees of covered employers may be required to undergo weekly testing.  

California employers, however, are governed by Cal/OSHA.  Cal/OSHA could decide to adopt the federal ETS, or it could adopt a modified version that meets the requirements of the federal ETS with additional restrictions.  Cal/OSHA, which issued its own emergency temporary standard unrelated to vaccination mandates must either adopt the federal ETS or alternative standards that are at least as effective as the federal ETS, assuming the federal ETS survives its legal challenges.  

The following sets forth the requirements of OSHA’s ETS that all private employers with 100 or more employees, including those in California, should be familiar with, given the potential need for compliance.  

Covered Employers & Employees

The ETS covers all employers with a total of 100 or more employees at any time that the ETS is in effect.  Specifically excluded from the ETS are: (1) smaller employers with fewer than 100 employees – an exclusion with which the Fifth Circuit took issue; (2) federal contractor workplaces covered under the Task Force Guidance; and (3) settings where any employee provides healthcare services or healthcare support services subject to the requirements of the Healthcare ETS.

The ETS requirements also do not apply to employees of covered employers:

1.  Who do not report to a workplace where other individuals (such as coworkers or customers) are present;
2.  While working from home; and
3.  Who work exclusively outdoors.  

However, in determining whether an employer reaches the 100-employee threshold, all employees across all U.S. workplaces must be counted, regardless of where employees perform their work.  For example, if an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of the ETS because it has more than 100 employees. The requirements of the ETS, however, would apply only to the 50 employees who work in the office and not to those 100 employees who work exclusively from their homes.  Part-time employees count towards the total number of employees.  Independent contractors do not count towards the total number of employees.

Employer Policy On Vaccination

The ETS requires covered employers to establish, implement, and enforce a written policy that either:

1.  Mandates employees to be vaccinated against COVID-19; or

1.  Allows employees to choose either to be fully vaccinated against COVID-19 or provide proof or regular testing (weekly) and wear required face coverings.  

OSHA developed two template policies for employers to customize based upon which of the two regimes they choose to adopt.   

The ETS provides that employees may be exempted from a mandatory vaccination policy if they fall under one of three categories: (i) those for whom a vaccine is medically contraindicated; (ii) those for whom medical necessity requires a delay in vaccination; or (iii) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious belief that conflicts with the vaccination requirement.  Such individuals must, however, comply with the ETS’ testing requirements unless they telework or are otherwise not subject to the ETS’ requirements.  Additionally, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, the worker may be entitled to a reasonable accommodation.

Determining Employees’ Vaccine Status

Covered employers must determine the vaccine status of each employee by requiring each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.  Acceptable proof of vaccination is:

1.  The record of immunization from a health care provider or pharmacy;
2.  A copy of the COVID-19 Vaccination Record Card;
3.  A copy of medical records documenting the vaccination;
4.  A copy of immunization records from a public health, state, or tribal immunization information system; or
5.  A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s),  

Any employee who does not provide an acceptable form of proof of vaccination must be treated as not fully vaccinated.  

Covered employers that collected proof of vaccination status prior to the effective date of the ETS and retained such records are not required to reevaluate vaccination status for fully vaccinated employees and are permitted to use any record of response, even if it is not listed as acceptable proof under the ETS.  

Booster shots are not included in the definition of “fully vaccinated” under the ETS.  

Recordkeeping

Employers must maintain a record of each employee’s vaccination status.  Under the ETS, an employee cannot merely show the employer their vaccination status (e.g., by bringing the CDC COVID-19 vaccination card to the workplace and showing it to an employer representative or showing an employer representative a picture of the immunization records on a personal cellphone).  The employer must retain either a physical or digital copy of the documentation.   

In addition, covered employers must maintain a roster of each employee’s vaccination status.  The roster must list all employees and clearly indicate for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.  The standard requires the employer to include all employees, regardless of vaccination status, on the roster.

Weekly Testing Option

If a covered employer provides employees with the option to submit to COVID-19 testing in lieu of vaccination, the frequency of such testing depends upon whether the employee regularly reports to a workplace or was recently diagnosed with COVID:

- If an unvaccinated employee regularly reports to a workplace at which other individuals are present (i.e., coworkers or customers), he or she must present a COVID-19 test result at least once every 7 days.

- If an unvaccinated employee does not report to a workplace during a period of 7 or more days (i.e., teleworks from home), he or she must test within 7 days before returning to the workplace.

- If an employee is diagnosed with COVID-19 by a health care professional or by a positive COVID-19 test result, then the employer must not require that employee to undergo testing for 90 days following the date of the positive test or diagnosis.

Employers must maintain a record of each test result required to be provided by each employee pursuant to the ETS.  

An over-the-counter-test from a local pharmacy may be used to satisfy the testing requirement, but may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.  

The federal ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.  For example, it remains an open question whether California law requires employers to pay the costs associated with testing, including time spent to be tested, under the ETS regime where employees have the option to either get vaccinated or submit to weekly testing.  

Employer Support For Employee Vaccination – Paid Time Off

The ETS requires that covered employers provide paid time off and paid sick leave for employees to get vaccinated and to recover from any side effects of the vaccine.  This includes:

1.  Up to four hours paid time, including travel time, at the employee’s regular rate of pay for each vaccination dose; and

1.  Paid sick leave for a “reasonable” amount of time to recover from side effects.  Although “reasonable” is not defined, OSHA’s FAQs state that if an employer makes available up to two days of paid sick leave per vaccination dose for side effects, the employer would be in compliance with this requirement.

Covered employers may require employees to use accrued paid sick leave benefits under employers’ existing paid sick leave policies when taking time off for recovery from vaccination, but may not require employees to use existing leave entitlements for the time to get vaccinated.

However, if an employee does not have accrued paid sick leave needed to recover from vaccine side effects, an employer may not require the employee to accrue negative paid sick leave or borrow against future paid sick leave.

Employers are not obligated by the federal ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination.  (California employers should monitor how Cal/OSHA or the California Division of Labor Standards Enforcement (“DLSE”) address this issue.)  

Face Coverings  

Covered employers must ensure that every employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.  The exceptions include:

- When an employee is alone in a closed room;
- For a limited time while eating or drinking;
- For a limited time for identification purposes;
- When an employee is wearing a respirator or facemask (such as a mask for medical procedures); or
- Where the employer can show that the use of face coverings is not feasible or creates a greater hazard.

Additional Requirements

The ETS requires covered employers to provide employees with:

- The CDC document entitled, “Key Things to Know About COVID-19 Vaccines;”
- The employer’s policies regarding the ETS;
- OSHA’s anti-discrimination and anti-retaliation requirements; and
- Information about OSHA’s penalties for supplying false statements or documentation.

The ETS also requires employees to promptly notify the employer of a positive test result, and requires employers to remove any employee who receives a positive test from the workplace until the ETS return-to-work criteria are met.  

Under the current Cal/OSHA standard, employees who are excluded from the workplace because they have COVID-19 (irrespective of whether it was contracted at work) or had a close contact to a COVID-19 case are entitled to earnings and benefits continuation, unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments, or unless the employer can prove the close contact is not work related.  It remains to be seen whether Cal/OSHA will continue to require this continuation pay when it decides how to implement the federal ETS requirements.  

As to unionized workplaces, on November 10, 2021, the National Labor Relations Board General Counsel issued a memorandum stating that, because the ETS gives employers discretion to either mandate vaccines or allow employees to submit to weekly testing, covered employers must bargain with applicable unions regarding aspects of the ETS that affect terms and conditions of employment, both as to the implementation of the employer’s policy and the effects of that policy.  See “Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus,” GC 22-03 (November 10, 2021).  

As set forth above, despite the stay imposed by the Fifth Circuit Court of Appeals, all private employers with 100 or more employees should consider what steps they might take to prepare for the possible enforcement of the ETS.  California employers should continue to monitor Cal/OSHA’s response to the ETS.  Contact your SFSS&W attorney if you have any questions regarding the ETS, the stay currently in place, or its impact on your workplace.