OSHA's vaccine ETS summary

The Department of Labor has produced the emergency temporary standard (ETS) to protect unvaccinated employees of large employers that was promised by President Biden on September 9, 2021. The interim final rule, was published in the Federal Register November 5 (86 FR 61402), requires employers of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or to instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering in lieu of vaccination. The ETS also requires employers to provide paid time for workers to get vaccinated and to allow for paid leave to recover from any side effects. The DOL is soliciting comments on all aspects of the interim final rule.

In addition, the 490-page interim final rule also requires employers to:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status;
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and to remove the employee from the workplace, regardless of vaccination status, and not permit them to return to work until they meet required criteria;
• Ensure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Compliance dates. The ETS is effective November 5, 2021. Covered employers must comply with most of its requirements within 30 days of publication. However, they have 60 days to ensure that employees who are not fully vaccinated meet testing requirements.

“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

Federal contractors and federal workforce. Notably, the ETS does not apply to workplaces subject to Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” OSHA will treat federal agencies’ compliance with Executive Order 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” and Safer Federal Workforce Task Force guidance issued under Section 4(e) of Executive Order 13991, “Protecting the Federal Workforce and Requiring Mask-Wearing,” and Section 2 of Executive Order 14043, as sufficient to meet their obligations under the OSH Act and Executive Order 12196, “Occupational safety and health programs for Federal employees” (1980).

Authority. According to the DOL, the ETS is based on the requirements of the Occupational Safety and Health (OSH) Act and legal precedent arising thereunder. Under Section 6(c)(1) of the OSH Act, OSHA shall issue an ETS if the agency determines that employees are subject to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and an ETS is necessary to protect employees from such danger.

Risk to workers. Citing CDC statistics, the DOL noted that COVID-19 has killed more than 725,000 people in the United States in less than two years, and infected millions more. The pandemic continues to affect workers and workplaces. While COVID-19 vaccines authorized or approved by the U.S. Food and Drug Administration effectively protect vaccinated people against severe illness and death from COVID-19, unvaccinated people remain at much higher risk of severe health outcomes from COVID-19. Moreover, unvaccinated workers are much more likely to contract and transmit COVID-19 in the workplace than are vaccinated workers.

Grave danger. OSHA has determined that many employees in the United States who are not fully vaccinated against COVID-19 face grave danger from exposure to SARS-CoV-2 in the workplace. This finding of grave danger is based on the severe health consequences associated with exposure to the coronavirus, along with evidence demonstrating the transmissibility of the virus in the workplace and the prevalence of infections in employee populations.

OSHA has also determined that an ETS is necessary to protect unvaccinated workers from the risk of contracting COVID-19 at work. At present, workers are becoming seriously ill and dying as a result of occupational exposures to COVID-19, when a simple measure—vaccination—can largely prevent those deaths and illnesses. The ETS protects these workers through vaccination, the most effective and efficient control available, and further protects workers who remain unvaccinated through required regular testing, use of face coverings, and removal of all infected employees from the workplace.

Existing standards and regulations inadequate. OSHA has concluded, based on its enforcement experience during the pandemic to date, that continued reliance on existing standards and regulations, the General Duty Clause of the OSH Act, and workplace guidance, in lieu of an ETS, is not adequate to protect unvaccinated employees from the grave danger of being infected by, and suffering death or serious health consequences from, COVID-19.

Continued monitoring updating as appropriate. The federal safety and health agency will continue to monitor trends in COVID-19 infections and death as more of the workforce and the general population become fully vaccinated against COVID-19, and the pandemic continues to evolve. Where OSHA finds a grave danger from the virus no longer exists for the covered workforce or some part of it, or new information indicates a change in measures necessary to address the grave danger, the agency will update the ETS, as appropriate.

Covered employers. The ETS applies to employers with a total of 100 or more employees (firm or companywide) at any time the standard is in effect. Given the unique occupational safety and health dangers presented by COVID-19, and against the backdrop of the uncertain economic environment of a pandemic, OSHA is proceeding in a “stepwise fashion” to address the emergency that the interim final rule covers.

OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly. However, the agency is less confident that smaller employers can do so without undue disruption. OSHA said it needs additional time to assess the capacity of smaller employers. To that end, the agency is seeking comment to help make that determination.

Nonetheless, OSHA is taking action to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the U.S., including those working in the largest facilities, where the most-deadly outbreaks of COVID-19 can occur. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public-sector workers employed by state and local governments, including educators and school staff.

Vaccination and side effect recovery leave. Paying workers for the time spent to receive vaccination and to recover from side effects has proven to be an effective method for increasing vaccination rates, OSHA said. The agency pointed to several surveys, including findings which indicate that not being able to take time off from work is a barrier to vaccination.

To address this barrier, the ETS requires employers to support COVID-19 vaccination by providing each employee with “reasonable” time, including up to four hours of paid time (at the regular rate of pay) during work hours, to receive each primary vaccination dose, and “reasonable” time and paid sick leave to recover from side effects experienced following any primary vaccination dose.

Neither the paid time required to receive any vaccine dose(s) nor the paid sick leave required to recover from side effects following any vaccination dose are retroactive requirements for vaccine dose(s) received prior to the promulgation of the ETS.

Leave for vaccination. Reasonable time for vaccination may include time spent during work hours related to the vaccination appointment(s), such as registering, completing required paperwork, all time spent at the vaccination site, and time spent traveling to and from the location for vaccination.

The maximum four hours of paid time for each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.

Notably, employers are not required to reimburse employees for transportation costs incurred to receive the vaccination, including the costs of travel to an off-site vaccination location or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose.

Vaccination outside of work hours. Because employers are required to provide reasonable time for vaccination during work hours, if an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours. However, even if employees receive a primary vaccination dose outside of work hours, employers must still afford them reasonable time and paid sick leave to recover from side effects that they experience during scheduled work time.

Employer facilitated vaccination. Where an employer chooses to make the vaccine available to employees, it must support full vaccination (i.e., provide all doses in a primary vaccination, as applicable), and assure the availability of reasonable time and paid time to each employee to receive the full primary vaccination, and reasonable time and paid sick leave to recover from side effects that they may experience. Any additional costs incurred by the employer to bring vaccination on-site would be covered by the employer, though such an approach would likely reduce the amount of paid time needed for vaccine administration (but not side effects) because of reduced employee travel time.

Unpaid leave for vaccination. OSHA understands that, in some circumstances, an employee may need more than four hours to receive a primary vaccination dose, in which case the additional time, as long as it is reasonable, would be considered unpaid but protected leave. The employer cannot terminate the employee if they use a reasonable amount of time to receive their primary vaccination doses. The employee may use other leave time that they have available (e.g., sick leave or vacation time) to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.

Leave for vaccination recovery. Employers are required to support COVID-19 vaccination for each employee by providing reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose. This paid sick leave can be in the form of an employee’s accrued sick leave, if available. If the employee does not have available sick leave, leave must be provided for this purpose.

Where the employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects of a primary vaccination dose. If an employer does not specify between different types of leave, the employer may require employees to use that leave when recovering from vaccination side effects. Where the employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.

Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects, and may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

Importantly, employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be “reasonable.”

Other laws and CBAs. OSHA acknowledged that other federal, state, or local laws, or collective bargaining agreements, may require employers to provide employees additional paid time for vaccination and/or paid sick leave to recover from vaccination side effects. Where there is such overlap, the requirements of the ETS are met so long as the employer provides each employee reasonable time and four hours of paid time to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following a primary vaccination dose.

Comments. Written comments on any aspect of the ETS, and whether it should become a final rule, must be submitted within 30 days after publication in the Federal Register. Comments on the information collection determination described in the Additional Requirements (Section V.K. of the preamble) may be submitted within 60 days after publication in the Federal Register. Further information on submitting comments is detailed in the DOL’s rulemaking notice.

Compliance assistance. OSHA is offering compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions, and other compliance materials.

Source: By Pamela Wolf, J.D.

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