Takeaways for Employers

• The Emergency Temporary Standard (ETS) and supporting documents are available here

• Employers with 100 employees at any time the regulations are effective are covered as long as the ETS is in place

• The ETS does not apply to workplaces covered by the guidance for federal contractors or subcontractors, or the ETS covering healthcare workers because OSHA determined that covered contractor employees and healthcare workers are already covered by the protections in the guidance and the healthcare ETS

• Employees who work from home, who work exclusively outdoors, or work where no coworkers or customers are present are not subject to the requirements

• Tests must be authorized by the FDA (viral test), and not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor

• All employees must be fully vaccinated other than those for whom a vaccine is medically contraindicated, for whom medical necessity requires delay, or who are entitled to an accommodation due to disability or religious belief

• “Fully vaccinated” does not require boosters

• Employers must collect and maintain proof of vaccination and keep a roster of employees’ vaccination status

• Fully vaccinated employees are not required to wear face coverings by the ETS

• Employees are entitled to know the number of employees vaccinated at their worksite

• Contact tracing by employers is not required

Vaccination Policy Requirement

Employers must establish, implement, and enforce a written mandatory vaccination policy. Or, an employer can have a policy that permits employees to choose either to be fully vaccinated or provide proof of regular testing and wear a face covering. According to the ETS’s definition, “fully vaccinated” does not require boosters. Under federal law, employees may be entitled to reasonable accommodation due to disability or a sincerely held religious belief unless it would be an undue hardship. Due to a disability, an employee may request accommodation from the vaccination and/or face covering requirements. In addition, an employee may request accommodation from vaccination, face covering, and/or testing requirements due to a sincerely held religious belief. Section 1910.501(d). OSHA has provided a sample of each type of policy on its website here.

Employers must support vaccination by providing up to four hours of paid time off for employees to get each primary vaccination dose. This time off cannot count against the employee’s vacation or paid sick leave. In addition, employers must provide a reasonable amount of paid sick leave to recover from side effects following each dose of the vaccine. Section 1910.501(e). According to the FAQ published with the ETS, employers can cap the amount of sick leave provided.

Employee Roster and Proof of Vaccination Status

The ETS requires employers to determine the vaccination status of each employee and keep a roster of employees’ vaccination status. These documents are to be treated as medical records, and maintained and preserved while these regulations are in effect. To make this determination, employers must collect acceptable proof of vaccinated status (whether an employee is fully or partially vaccinated), such as:

• Immunization record from health care provider or pharmacy

• COVID-19 Vaccination Record Card

• Medical records documenting vaccination

• Immunization records from a public health immunization information system

• Any other official documentation that has type of vaccine, date(s) of administration, name of provider that administered the vaccine(s)

• Where an employee is unable to provide any of the above documentation, a signed and dated statement from the employee attesting to their status and that they lost and are unable to produce the proof required, along with the following specific sentence:"I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties."

If an employee does not provide sufficient documentation, they must be treated as not fully vaccinated. If an employer has already determined vaccination status before the ETS became effective, and required a different form of attestation or proof, then for any employees who documented their fully vaccinated status, the employer’s prior documentation is acceptable proof of documentation. Section 1910.501(f).

Testing for Employees Who Are Not Fully Vaccinated

Employees who are not fully vaccinated and report to a workplace with coworkers or customers at least once a week must be tested at least once a week and provide documentation of the test results every week. Employers must maintain a record of each test result provided by employees. The test results are to be treated as medical records, and maintained and preserved while these regulations are in effect.

If an employee does not promptly provide such documentation, they must stay removed from the workplace until they provide a test result. If an employee tests positive or is diagnosed with COVID-19, that employee does not have to test for 90 days after the positive test or diagnosis. Section 1910.501(g).

For employees who do not report to a workplace with coworkers or customers at least once a week, testing is required within seven days before they report to the workplace and documentation of the test results must be provided upon return to the workplace.

Employers are not required to pay for any costs associated with testing, although employers can voluntarily pay for testing. Employers should confirm that they are not required to pay for testing based on other laws, regulations, or collective bargaining agreements.

Notification of Positive Test or Diagnosis

Employers must require any employee who tests positive or is diagnosed with COVID-19 to notify the employer, and then remove that employee from the workplace until they (1) test negative on a nucleic acid amplification test (NAAT), (2) meet the CDC’s return to work criteria in its Isolation Guidance, or (3) are recommended to return to work from a licensed healthcare provider. Section 1910.501(h). However, the FAQ make it clear that contact tracing is not part of the ETS’s requirements.

Face Covering Requirements

Employees who are not fully vaccinated must wear a face covering when indoors or riding in a vehicle with another person except when alone in an office with floor-to-ceiling walls and a closed door, temporarily when eating or drinking, if lowering the face covering for identification purposes, if wearing a respirator or facemask, or if wearing a face covering is infeasible or creates a greater hazard that would excuse compliance.

Employers are required to ensure that face coverings are worn to fully cover the nose and mouth and are replaced when wet, soiled, or damaged. Employers may not prevent employees from voluntarily wearing a face covering unless doing so would create a hazard of serious injury or death. In addition, employers must not prevent visitors or customers from wearing face coverings, and nothing prevents employers from requiring visitors or customers to wear face coverings. Section 1910.501(i).

Employers Must Provide Employees with Certain Information

The ETS requires employers to inform employees about the requirements in the ETS, the policies and procedures the employer establishes to implement the ETS, and the prohibitions against supplying false statements and records. Also, Employers must provide the document “Key Things to Know About COVID-19 Vaccines” to employees. Section 1910.501(j).

Employers further must provide, within one business day:

• The employer’s records of COVID-19 vaccination information and any test results to that employee and to anyone with that employee’s written authorized consent

• The aggregate number of fully vaccinated employees at a workplace, and the total number of employees at that workplace to any employee or their representative. A workplace is a physical location where the employer’s work or operations are performed, but does not include an employee’s residence.

Employers should note that there is no minimum number of employees per worksite required in order for the disclosure requirement to apply. In addition, upon request from OSHA, employers have four business hours to provide a copy of their policy and the aggregate worksite numbers described above. Section 1910.501(l).

Preemption of State and Local Law

In the preamble to the ETS, OSHA specifically spoke out on the need for clear and consistent protection to employees throughout the country and, due to the lack of a national standard on coronavirus protections to employees, states and localities have filled in with their own standards. OSHA noted that “an increasing number of States have passed laws or enacted other requirements banning workplace vaccination policies that would mandate vaccination or require proof of vaccination status, thus prohibiting employers operating in those jurisdictions from implementing this proven method of protecting workers from the hazard of COVID-19 that is at the core of this ETS,” citing executive orders and legislation from Texas, Montana, Arkansas, and Arizona.

To ensure that the ETS preempts the state and local vaccination bans and to avoid future bans, Section 1910.501(a) specifically states, “[t]his section is intended … to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers' authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Effective Dates

The ETS requires employers to comply with the regulations by December 5, 2021, other than Section (g), which requires all employees who are not fully vaccinated to test weekly (or otherwise as required) or be removed from the workplace. Employers must comply with Section (g) beginning on January 5, 2022, which is 60 days after the ETS is published in the Federal Register.

Therefore, employers have 30 days, or until December 5, 2021, to comply with Section (d) by establishing a policy, Section (e) by determining employees’ vaccination status, Section (f) by providing paid time off for each dose of the vaccine plus paid sick leave for any side effects, Section (h) regarding notification of positive COVID-19 test and removal from the workplace, Section (i) by requiring face coverings for employees who are not fully vaccinated, Section (j) regarding the provision of information to employees, Section (k) by reporting fatalities and hospitalizations, and Section (l) by making records available to employees.

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.