UPDATED 11-22-21: Questions and Answers on the Federal COVID-19 Vaccination Mandate for Large Employers

UPDATED November 22, 2021 – As has been widely covered in the news, the Fifth Circuit Court of Appeals in New Orleans has put a stay on the federal government’s vaccine mandate for large employers, which was scheduled to fully take effect on January 4.  In response, “OSHA has suspended activities related to the implementation and enforcement of the ETS [Emergency Temporary Standard] pending future developments in the litigation.”

A wrinkle is that the Fifth Circuit may have jumped the gun in its actions.  The usual course in cases such as this where multiple challenges are filed nationwide against an agency rule is to consolidate them in one federal appeals court chosen by lottery.  That multidistrict litigation process was already underway when the Fifth Circuit issued its ruling on November 12.

The lottery last week assigned about three dozen cases challenging the OSHA rule to the Sixth Circuit Court of Appeals in Cincinnati.  This provides the Biden administration an opportunity to ask the Sixth Circuit to lift the Fifth Circuit’s stay.

Stay tuned for further developments.

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On November 5, the Occupational Safety and Health Administration (OSHA) issued a rule, termed an Emergency Temporary Standard (ETS), covering private employers of over 100 persons.  Covered employers must develop and enforce a mandatory COVID-19 vaccination policy or alternatively a policy requiring employees to either be vaccinated or elect to undergo regular COVID-19 testing and wear a face covering in lieu of vaccination.

The ETS was made effective immediately, however covered employers have until December 5 to comply with the ETS by establishing a policy on vaccination, determine the vaccination status of each employee and ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.  Employers then have another 30 days, until January 4, 2022, to ensure employees that are not fully vaccinated are regularly tested.

While a federal appeals court has temporarily stayed the ETS, covered employers would be well advised to prepare for compliance by the requisite dates.  This article is meant to provide answers on what employers are covered under the rule, the required elements of a vaccination policy, how to determine employee vaccination status, employer support for vaccinations, testing requirements, face coverings, and required actions when an employee tests positive for COVID.

Employers Covered by the Rule

Q. How is the 100-employee count determined?

A. The count should be made at the employer level, i.e., corporate wide, not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted.  Similarly, two or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.

Q. What classes of employees are included in the count?

A. Employees who work from home are included in the count, as are employees who perform work at all site locations, such as in customer homes. Part-time employees are included in the count, as are temporary and seasonal workers.  However, independent contractors are not included.  Minors who are employed by the employer are also included in the count.

Q. How are employees from staffing agencies and in franchisor/franchisee settings counted?

A. In the traditional franchisor/franchisee relationship, each franchise location is independently owned and operated. Therefore, the franchisee will be a separate entity in counting employees for coverage purposes.  Similarly, the employees of the staffing agency placed at a host employer would be the responsibility of the staffing agency for purposes of the 100-employee threshold for coverage under the ETS.

Q. What about employees who work exclusively outdoors?

A. While employees who work exclusively outdoors are included in the count for application of the ETS, the standard protections would not apply to those employees working exclusively outdoors. In order to be considered as exclusively working outdoors, the employee must (1) work outdoors on all days; (2) the employee must not routinely occupy vehicles with other employees as part of his/her work duties; (3) the employee must work outdoors for the duration of every work day except for de minimis use of indoor spaces where other employees may be present, such as a multi-stall bathroom or an administrative office, as long as the time spent indoors is brief.  Outdoor work does not include buildings under construction where substantial portions of the structure are in place.

Q. What if an employer has fluctuating employee numbers?

A. The determination on the number of employees is made initially as of the effective date of the ETS on November 5. If the employer has 100 or more employees on that date, the ETS applies for the duration of the standard.  If the employer has fewer than 100 employees on the effective date, the employer would be subject to the rule if it subsequently exceeds 100 employees.  Once an employer comes within the scope of the ETS, the rule continues to apply for the remainder of the time the ETS is in effect, regardless of subsequent fluctuations in employment levels.

Q. What other entities are not covered by the ETS?

A. The ETS does not apply to state and local government employers unless their state has an OSHA-approved occupational safety and health program. The Rule does not apply to employees of federal agencies, who are already covered under the similar requirements of Executive Order No. 14043.  The exception are persons employed by the U.S. Postal Service, who are covered by the ETS.  The ETS likewise does not apply to employees in settings covered by the Health Care ETS, which was tailored to the health care workplaces it covers.

Employer Vaccination Policies

Q. What information must be included in the written mandatory vaccination policy?

A. The requirements of a written policy must include the following:

• Requirements for COVID-19 vaccination;
• Applicable exclusions from the written policy (g., medical necessity, a reasonable accommodation for workers with disabilities or sincerely held religious beliefs);
• Information on determining an employee’s vaccination status and how this information will be collected;
• Paid time and sick leave for vaccination purposes;
• Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
• How information will be made available to employees;
• Disciplinary action for employees who do not abide by the policy.

Q. May an employer have a policy that applies different requirements to different subsets of employees?

A. Under the OSHA ETS, an employer may require vaccinations for certain employees, such as those who come in direct contact with customers, but may treat vaccination as optional for others, such as those employees who are working only in the office or who work from home on a full or partial basis.  Any employee who is not vaccinated, however, would need to submit to testing weekly or when returning to the office following a longer period away.

Q. If an employer decides to have a mandatory vaccination policy, is an employer required to continue to employ an unvaccinated person who refuses to get vaccinated?

A. No. An employee’s refusal to comply with an employer’s policy on vaccination would generally not be protected under OSHA, unless the employee is subject to a valid exemption.

Determination of Employee Vaccination Status

Q. What forms of documentation are required to verify vaccination status?

A. Any of the following would provide acceptable documentation of vaccination:

• the record of immunization from a health care provider or pharmacy;
• a copy of the U.S. COVID-19 Vaccination Record Card;
• a copy of medical records documenting the vaccination;
• a copy of immunization records from a public health, state, or tribal immunization information system.

Q. What if an employee claims to be vaccinated but says they lost their vaccination record?

A. An employee who claims that their vaccination record was lost or stolen should, in most circumstances, be able to obtain a copy from their vaccination provider or from their state health department’s immunization information system. In the exceptional instances where that is not possible, an employee may, under the rule, provide a signed and dated statement that:

• Attests to their vaccination status (fully or partially vaccinated);
• Attests that they have lost or are otherwise unable to produce proof of vaccination;
• Includes the following language: “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.”
• The attestation should also include, to the best of the employee’s recollection, the following information:
  • The type of vaccine administered
  • Dates of administration
  • The name of the health care professional, pharmacy or clinic site administering the vaccine.

Q. What records must an employer retain regarding employee vaccinations?

A. Employers must retain a copy of the record provided by an employee. Employers must maintain a roster of all employees, including whether they have been vaccinated or qualify for an exemption (with written evidence of either), or whether they are unvaccinated.

Q. Are the vaccine records and roster considered medical records?

A. Yes. These records are considered personally identifiable medical information which must be maintained in a confidential manner.

Q. Must an employer also obtain evidence that an eligible employee has received a booster shot or additional doses of the vaccine?

A. No. That is not included under the Rule.

Employer Support for Employee Vaccination

Q. May an employer require employees to use personal time or sick leave to get vaccinated?

A. No. Covered employers are required to provide reasonable time to each employee during work hours, up to four hours of paid time at the employee’s regular rate of pay for each of their primary vaccination doses.  This paid time for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as PTO.

Q. What if an employee experiences side effects from the vaccine? Can the employee be required to use their sick or PTO leave to recover?

A. If an employee already has accrued paid sick leave or unspecified paid time off (PTO), an employer may require the employee to use that paid leave when recovering from side effects experienced following a primary vaccination dose. Employees cannot be required to use vacation time for such recovery, however.  Furthermore, an employer may not require an employee to borrow against future paid sick leave or PTO to recover from vaccination side effects.  An employer must provide reasonable paid sick leave to employees to recover from side effects experienced following a primary vaccination.  OSHA presumes that if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer will be in compliance with this requirement.

COVID-19 Testing for Employees Who Are Not Fully Vaccinated

Q. Do unvaccinated employees who work remotely need to submit to weekly COVID-19 testing?

A. No. The requirements of the ETS do not apply to employees who do not report to the workplace where other individuals, such as coworkers or customers are present, or while working from home.  If the unvaccinated employee does come into the office intermittently for meetings or other purposes, however, he or she must be tested within the seven days prior to the day the employee is in the office and provide documentation of the test result to the employer upon return to the office.  The employer must maintain a record of each test result required to be provided by employees.

Q. Does the ETS require employers to cover the costs associated with COVID-19 testing?

A. No. Employers are not required, but may choose to pay for any costs associated with testing.  Some employers may choose to pay for some or all of the testing costs as an inducement to keep employees in a tight labor market.  Other employers may choose to put the full cost of testing on employees in recognition of the employee’s decision not to become fully vaccinated.  Some employers may be required to cover the cost of testing for employees pursuant to other laws, regulations or agreements.

Q. What type of COVID-19 tests are acceptable under the Rule?

A. COVID-19 tests can broadly be divided into two categories: diagnostic tests and antibody tests. Diagnostic tests detect parts of the virus and can be used to diagnose current infection.  Antibody tests look for antibodies in the immune system produced in response to the virus and are not used to diagnose an active infection, and as such do not meet the definition of a valid COVID-19 test for the purposes of the rule.  However, any diagnostic test that is cleared, approved or authorized by the FDA to detect current infection with the virus is acceptable.  This includes most standard over-the-counter antigen tests, as long as there is some type of independent confirmation of the test result to ensure its integrity, as by a licensed health care provider, a point of care test provider, or even an employer representative.

Face Coverings

Q. Who is required to wear a face covering?

A. Only employees who are not fully vaccinated are required to wear a face covering when indoors or when occupying a vehicle with another person for work purposes. This includes persons who are unvaccinated both under a policy allowing that or due to a valid exemption.  It is to be noted, however, that an employer may not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless the employer can demonstrate that doing so would create a hazard.

Q. What is a face covering?

A. A sufficient face covering (1) must completely cover the nose and mouth; (2) is made with two or more layers of breathable fabric that is tightly woven; (3) is secured to the head with ties, ear loops or elastic bands that go behind the head; (4) fits snugly over the nose, mouth and chin with no large gaps; and (5) is a solid piece of material without slits, holes or other openings.

Q. Are there any exceptions to the face covering requirements for nonvaccinated workers under the ETS?

A. Yes. An employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except:

• When an employee is alone in a room with floor-to-ceiling walls and a closed door;
• For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
• When an employee is wearing a respirator or a facemask;
• When the employer can show that the use of face coverings is infeasible or when the use of a face covering presents risk of serious injury or death to the employee.

Employee Notification to Employer of a Positive COVID-19 Test and Removal

Q. When must an employee notify an employer of a positive test result?

A. The employee must “promptly” notify the employer as soon as practicable before the employee is scheduled to start their shift or return to work. The employer must immediately remove or prohibit from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider regardless of COVID-19 vaccination status.

Q. Are employees required to be provided with paid time off if they are removed from the workplace?

A. No. The rule does not require employers to provide paid time off to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19.  However, employers should allow their employees to make use of any accrued leave in accordance with employer policies and practices on the use of leave.

Q. If an employee has been removed from the workplace because they are COVID-19 positive, are they still allowed to work remotely?

A. Yes. The employer in such circumstances can require the employee to work remotely during isolation if the employee is not too ill to work.  However, if an employee is too ill to work, remote work should not be required, and sick leave or PTO should be made available as consistent with the employer’s general policies and practices.

Q. What criteria do employees who test positive for COVID-19 need to satisfy before returning to the workplace?

A. Generally, they would require a recommendation to return to work from a licensed health care provider. However, if the employee received a positive result on a COVID-19 antigen test and the employee chooses to seek a subsequent nucleic acid amplification test (NAAT) and that test is negative, the employee may return to work on that basis if the employee is exhibiting no symptoms of COVID-19.  That is because there is a small possibility for employees to receive false positive test results when regular screening is conducted with an antigen test.  NAAT tests are considered the “gold standard” for clinical diagnosis of COVID-19 and therefore, if an employee tested positive for COVID-19 via an antigen test, but then received follow up confirmatory testing via a NAAT and the NAAT was negative, the positive antigen test can be considered a false positive and the employee may return to work.

While these Q’s and A’s should answer many of the questions that employers may have regarding the ETS, the Business & Employment Law attorneys at Nauman Smith are available to help businesses navigate these  Please contact Managing Partner, Ben Dunlap, at bdunlapjr@nssh.com with additional questions.