OSHA’s New COVID-19 Rule Explained

On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) unveiled a new emergency temporary standard (ETS), mandating that employers with 100 or more employees must require their employees either to be fully vaccinated for COVID-19 or to wear face coverings and submit to weekly COVID-19 testing.¹ The new rule was published in the Federal Register on November 5, 2021. The new rule was expected, since the Biden Administration had announced its intention to promulgate such a requirement in September 2021.

Just one day after the rule went on the books, a federal appeals court imposed a stay on the rule to determine its validity. On November 12, 2021, the same court extended the stay pending more thorough judicial review. This article answers the essential questions about the new ETS: who, what, when, where, why, and how.

WHAT is an ETS?

OSHA is the federal regulatory agency responsible for issuing workplace health and safety regulations. Such regulations include requirements to wear personal protective equipment, limit employee exposure to hazardous chemicals, and preventive measures to prevent workplace injuries. The usual procedure for establishing a new workplace safety standard is quite extensive, involving the collaboration of several agencies and committees, and requiring notice, comment, and public hearings before a new regulation takes effect.

However, under limited circumstances, OSHA can establish emergency temporary standards that circumvent the normal administrative procedures and that take effect immediately. In order to do this, OSHA must make two determinations as to the emergency standard being considered:

1. That employees are in grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards; and
2. That such emergency standard is necessary to protect employees from such danger.

The term “grave danger” is not defined in any statute or regulation, nor have the federal courts offered much guidance on the meaning of the term.

This is not the first time OSHA has issued an ETS related to COVID-19. On June 21, 2021, the agency issued an ETS applicable to healthcare settings. Before this, the last time OSHA attempted to enact an ETS was in 1983, but that ETS was struck down by a federal appeals court. Since OSHA was created in 1970, the agency has used its statutory authority to create emergency standards very sparingly and most attempts to do so have been partially or fully blocked by federal courts.

WHAT does the ETS require?

The new ETS is far more than just a vaccination or testing mandate. The new rule imposes several substantial requirements for employers. Under the ETS, employers must:

• 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;
• support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each dose;
• ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
• require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
• immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider;
• keep removed employees out of the workplace until they meet criteria for returning to work;
• ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes;
• provide employees with information about the requirements of the ETS and workplace policies and procedures established to implement the ETS, as well as information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation;
• Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization;
• make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee; and
• make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

In order to be considered “fully vaccinated,” the ETS requires that an employee must have received two doses of either the Moderna or Pfizer-BioNTech mRNA vaccines, or one dose of the Johnson & Johnson vaccine.

WHO is covered by the ETS?

The new ETS applies to all employers with a total of 100 or more employees at any time the standard is in effect. In explaining its decision to set this scope of application, OSHA explains in the ETS that it is:

proceeding in a stepwise fashion in addressing the emergency this rule covers. OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption. OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.

This explanation suggests that OSHA is considering eventually expanding the requirements to smaller employers.

It should be noted that certain employers such as healthcare entities and federal contractors are subject to additional mandates from OSHA and other federal agencies, some of which do not permit weekly testing as an exception or alternative to vaccination for employees.

WHO pays for the testing?

The ETS requires employers to provide up to four hours of paid time off and additional sick leave for employees getting vaccinated. But the ETS emphatically states that OSHA will not require employers to cover any costs associated with weekly testing for employees who elect not to get vaccinated or for those employees’ use of face coverings. The ETS states that this is intended to “provide a financial incentive for some employees to be fully vaccinated.”

However, the ETS also states that there may be situations where employers might be required to bear the costs of testing, such as where state law requires such payment or if payment of testing is required in a collective bargaining agreement with a labor union.

WHAT exemptions exist for employees?

By its own terms, the ETS “does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.”

While the ETS contemplates that certain employees might not be able to be vaccinated due to medical or religious reasons, there are no exceptions to the alternative requirements of masking and weekly testing. Persons who have antibodies because they have already had COVID-19 are also not exempt.

WHEN does the ETS take effect?

The answer to this question is a little complicated. Technically, the ETS takes effect immediately upon its publication date, November 5, 2021. However, the ETS sets a deadline of December 5, 2021, for employers to come into compliance with many of the rule’s requirements, including masking, record keeping, and removal of COVID-19-positive employees.

The ETS’s requirements for employees to either be fully vaccinated or to submit to weekly testing does not start until January 4, 2022. But for employees seeking a two-dose vaccination (Pfizer or Moderna) the ETS requires a minimum of 17 days between the initial dose and the second dose.² This means that employers will need to ensure that employees getting either the Pfizer or Moderna vaccines will need to get their first dose no later than December 18, 2021, so that those employees can receive their second dose on January 4, 2022. Employers must ensure that employees electing the single-dose Johnson & Johnson vaccine must do so by January 4, 2022.

Another complication is that since the ETS has now been stayed pending review, it is not certain whether the original deadlines for enforcement will be pushed back, of if the rule will even survive judicial scrutiny.

HOW will the ETS be enforced and WHAT are the penalties for non-compliance?

OSHA oversees millions of American workplaces. It should be no surprise that it does not have a regimen for visiting all of them to ensure compliance with safety standards. Rather, in addition to responding ad hoc to major workplace accidents and injuries and focusing much of its inspection attention on inherently high-hazard workplaces, most of OSHA’s enforcement actions are taken after workplace inspections conducted in response to employee complaints. OSHA’s regulatory scheme includes a whistleblower mechanism under which employees can report suspected OSHA violations, thereby prompting OSHA inspections. OSHA includes strong protections for whistleblowers. Employers found to have retaliated against a whistleblower or taking any other adverse action against them can face harsh penalties.

For the new ETS, this means that employees can report violations of the rule, likely triggering OSHA investigations and enforcement actions against non-compliance. The ETS encourages and facilitates employee reporting of non-complying employers by requiring that employers’ workforce overall vaccination data be made available to their employees. Moreover, since the ETS also imposes employer reporting obligations for COVID-19 fatalities and hospitalizations, high COVID-19 casualty rates at a workplace may trigger an OSHA inspection apart from any employee complaint.

For instances of an employer’s non-compliance with the new rule, OSHA will impose fines of $13,653 per violation. Fines for “willful or repeated” non-compliance are ten times that amount ($136,532). Since violations could be calculated per-employee, these fines could be astronomical.

WHY are many states and employers challenging the ETS?

Ever since the preliminary announcement of the ETS back in September 2021, various governors, state attorneys general, and private businesses have expressed their intention to challenge the ETS in Court. At least one state, Texas, has banned employer vaccine and mask mandates under state law. Now that the ETS is out, many have followed through and are filing lawsuits against the Biden Administration to block OSHA’s enforcement of the new rule.

In this recent string of lawsuits, legal arguments against OSHA’s new ETS and against other vaccine mandates from other federal agencies include the following theories:

• OSHA and other federal agencies are acting outside of their statutory authority by promulgating vaccine mandates;
• OSHA and other federal agencies have failed to allow public notice and comment of the ETS and other vaccine mandates as required by the Administrative Procedure Act;
• The ETS and other federal vaccine mandates are arbitrary and capricious in violation of the Administrative Procedure Act;
• The ETS and other federal vaccine mandates violate the “Non-Delegation Doctrine,” a Constitutional principle that executive branch agencies cannot usurp Congress’s exclusive and essential legislative powers;
• Even if OSHA and other agencies have valid statutory authority from Congress to enact vaccine mandates, the legislation empowering agencies to impose such mandates exceeds Congress’s legislative powers under Article I, Section 8 of the Constitution, specifically Congress’s spending power and power to regulate interstate commerce;
• Deciding whether or not to get a COVID-19 vaccine is an expressive and political speech act and vaccine mandates violate the First Amendment by compelling speech; and
• Vaccine mandates violate the First Amendment’s Free Exercise Clause by imposing a substantial and unjustified burden on the free exercise of religion.

One unique aspect of legal challenges to the ETS is that the law empowering OSHA to promulgate workplace safety standards provides that persons (both employers and employees) who are “adversely affected” by such standards can challenge them by filing a petition with the U.S. Court of Appeals for the federal judicial circuit in which the challenging person lives or has a place of business. Challenges to federal regulations generally commence in federal district courts (trial courts) and only come before federal appeals courts after a ruling from a district judge. This unique judicial procedure for review of OSHA standards might mean that the various challenges to the ETS could end up before the U.S. Supreme Court within weeks.

WHAT are next steps for employers? / HOW to prepare for potential enforcement?

Many employers are now in the difficult situation of preparing to comply with a rule whose validity is still being determined by the courts. Employers who expect the ETS to survive legal challenges and want to prepare for compliance with the rule should start taking the following steps:

1. Determine whether your business is covered by the new ETS: You will need to find out how many employees your business employs. If you have 100 or more employees, the ETS would ostensibly apply to your business.
2. Determine which employees, if any, are exempt: You will need to determine which employees, if any, are exempt from the vaccination/testing requirements. Exempt employees include those who work remotely (i.e. from home) and those who work exclusively outdoors.
3. Determine employee vaccination status: If the ETS does go into effect, covered employers will have to ascertain the vaccination status of each one of their covered employees. This may be something that many employers feel very uncomfortable doing, but if the ETS goes into effect, it will be required.
4. Create a written policy compliant with the ETS: The ETS requires employers to have either a policy requiring all employees to be fully vaccinate or a policy requiring non-vaccinated employees to get tested weekly. Your business will need to decide which of those options it wishes to pursue. If your business elects to permit weekly testing, you will need to determine how testing will be administered and paid for.
5. Provide paid-time-off for employees getting vaccinated: Your HR professionals will need to prepare for administering paid time off for employees getting the vaccine.
6. Provide religious and disability accommodations for employees who require them: The ETS does not override state and federal laws requiring workplace accommodations for disabilities and sincerely-held religious beliefs.
7. Establish reporting and record-keeping procedures: The ETS requires employers to keep COVID-19-related records and to make certain reports to OSHA.

As of this writing, the ETS mandate has been stayed . . . Employers do not need to carry out the mandate in the meantime. There is a strong possibility that the mandate will be found unconstitutional or otherwise in violation of the law and struck down. In case that does not happen, employers would be wise to either continue preparing to enforce the mandate as necessary, or work with their counsel to articulate their own defense to it.

WHERE and HOW can you learn more?

The full version of the new ETS (nearly 500 pages long) is available here. An official brief OSHA summary of the ETS is available here. A September 2021 memorandum analyzing OSHA’s ability to promulgate COVID-19 emergency standards is accessible here. To best understand how the new ETS might affect your business or workplace, consult with an experienced employment attorney.

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¹ On the same day, the U.S. Department of Health and Human Services’ Center for Medicaid and Medicare Services issued an Interim Final Rule requiring all employees of healthcare facilities receiving Medicare or Medicaid funds to be fully vaccinated by January 4, 2021, but with no alternative for masking and/or testing.

² It should be noted that this 17-day period required by the ETS is shorter than both the CDC’s recommended 21 days between shots for the Pfizer vaccine and 28 days between shots for the Moderna vaccine.

Featured Image by Rebecca Sidebotham.