Construction Law Blog

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standard (ETS) which requires large employers to implement certain vaccination or testing policies and other measures to protect employees from the spread of COVID-19. OSHA contemporaneously issued helpful FAQs.    

Under the ETS, employers must (1) implement a COVID-19 vaccine or testing policy; (2) determine and maintain records of employee vaccination status and/or testing results; (3) provide paid leave for employees to get vaccinated and recover from side effects; (4) require masking of certain employees; (5) provide employees information about the rule, vaccines, and OSHA protections and penalties; (6) report work-related COVID-19 fatalities and hospitalizations to OSHA; and (7) maintain and make available certain records related to compliance with the rule. We review these requirements in detail below.

1. Which employers are subject to the ETS?

This ETS applies only to employers with 100 employees or more. To calculate the number of employees, employers should count all employees at all locations, including part time employees.  OSHA guidance indicates that, in some situations, two or more related entities may be regarded as a single employer if they handle safety matters as one company.

Employers should NOT count independent contractors or workers who are employees of a staffing agency. 

The ETS does NOT apply to workplaces that are already covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the Federal Contractor Rule). It is possible that an employer could have some of its workplaces governed by the Federal Contractor Rule and other workplaces governed by the ETS.

The ETS also does NOT apply to settings where any employee provides healthcare services or healthcare support services, because those employees are covered by the previously-released Healthcare Emergency Temporary Standard (the Healthcare ETS). If an employer has some employees who are covered by the Healthcare ETS and others who are not, the employees who are not covered by the Healthcare ETS are still covered under the ETS.

OSHA is soliciting public comment and seeking additional information to assess whether the ETS should be modified to apply to smaller employers in the future.

2. Which employees are covered by the ETS?

All employees of covered employers are covered – with a few notable exceptions. The ETS does NOT apply to employees who work from home, work exclusively outdoors, or do not report to a workplace where other individuals (such as coworkers or customers) are present.

While the above-referenced employees are not covered under the ETS, these employees should still be counted towards an employer’s headcount when determining whether the employer meets the 100-employee threshold.

3. As an employer subject to the ETS, what type of policy must my business implement?

First and foremost, employers must establish, implement and maintain a COVID-19 vaccination policy that either (1) mandates vaccination for all employees (absent exemptions on medical or religious grounds), or (2) requires all employees either to be vaccinated or obtain a negative COVID-19 test on a weekly basis and wear a facemask indoors (with certain limited exceptions). The written policy should include the following:

• Requirements for COVID-19 vaccination and/or testing and masking
• Applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs)
• Information on determining an employee’s vaccination status and how this information will be collected and confidentially mandated
• Paid time and sick leave for vaccination purposes (as described below)
• Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace
• Information about the safety and benefits of vaccination and OSHA’s anti-retaliation provisions
• Disciplinary action for employees who do not abide by the policy

The policy should also include a provision requiring employees to report promptly a positive COVID-test and laying out the conditions upon which they can return to work.

Employers may implement a policy that requires mandatory vaccination for certain groups of employees—such as those who interact directly with the public—but allows other employees to choose between vaccination and testing.

4. What are the paid leave provisions of the ETS?

The ETS provides for paid leave for employees to get vaccinated or to recover from any side effects from the initial doses of the vaccine.

Time Off to Get Vaccinated

Employers must allow employees time—up to four hours—during their work hours to get vaccinated and must compensate the employee for that time (and for travel to the vaccination appointment).

Employers cannot require employees to use their accrued sick leave or vacation time to get vaccinated. 

If an employee elects to get vaccinated on a weekend or outside of their work hours, employers are not required to grant the employee paid time.

Time Off to Recover from Side Effects

Employers must also provide time off and paid sick leave to employees to recover from the side effects of the vaccine. Unlike time to get vaccinated, however, employers can require employees to use sick leave (or PTO if the employer does not differentiate between types of leave) for this recovery time. 

Employers may also place a reasonable cap on the leave taken to recover from side effects (and according to OSHA FAQs, two days would be a reasonable cap). 

Neither of these provisions is retroactive to vaccine doses received prior to the release of the ETS. These provisions apply only to the vaccine doses needed to achieve full vaccination (e.g. both shots for Pfizer and Moderna, and the single shot for Johnson & Johnson), and not booster shots.

5. What if my business elects to allow employees the option of weekly COVID-19 testing?

Employees who chose not to be vaccinated must instead submit to weekly COVID-19 testing. If an employee does not regularly come into the worksite more than once a week, that employee does not require weekly testing, but must be tested within 7 days prior to returning to the worksite and show proof of a negative test upon return.

The ETS, on its own, does not require employers to cover the costs associated with COVID-19 testing unless required to do so “by other laws.” It is therefore important to consult applicable state law to determine whether payment requirements exist. Virginia employers should take note of  Va. Code § 40.1-28, which states that an employer cannot require an employee to pay the cost of a “medical examination” or the cost of furnishing any medical records required by the employer as a condition of employment.

Virginia’s COVID-19 permanent workplace safety standard (Virginia’s state plan) considers COVID-19 testing a “medical examination” under Va. Code § 40.1-28 and prohibits employers from requiring employees to pay for the cost of COVID-19 testing for return to work determinations.

Due to the uncertainty surrounding this aspect of the rule, employers should seek counsel before requiring employee payment for testing.

6. What records do I need to maintain?

Employers are required to determine employee vaccination status and maintain a record of vaccination status and/or weekly test results. It is not sufficient merely to see the employee’s vaccination card or proof of vaccination; employers must maintain a copy. Employers must also compile and maintain a register of all employees and whether they are vaccinated. The confidentiality of these records must be safeguarded.

7. Does this ETS change Virginia’s mask requirement?

Probably not.  The ETS provides that all unvaccinated employees must wear a face covering in the workplace. Virginia’s state plan, however, requires all employees – regardless of vaccination status – to wear a mask indoors in areas of substantial or high community transmission. Currently, all but three Virginia counties are areas of substantial or high community transmission. 

If your business is located in a locality that does not have high or substantial levels of community transmission, then only unvaccinated employees must wear a face covering. If your business is not in one of those select counties, all employees must wear a face covering in accordance with CDC guidance.   

8. When must my company comply with this ETS?

By December 5, 2021, employers must comply with all provisions of the ETS except for the vaccination and testing requirement.   

By January 4, 2022, employers must ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly and adhere to masking requirements.

Employers should therefore promptly begin formulating their written policies and determining whether to implement a mandatory vaccination regime or a program with a testing option.

This article provides a preliminary overview of the ETS, which is already subject to challenge in court. If you have questions about the details of any of these policies, or about how it applies to your workplace, please contact a member of the Hirschler employment law practice group.