OSHA’s Covid-19 Vaccination Emergency Temporary Standard

Our Employment Team gives an update and explanation on the OSHA Covid-19 Vaccine Mandate and what this could mean for Hoosiers. 

On Thursday, November 4, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) issued its long-foretold Emergency Temporary Standard (“ETS”) imposing workplace rules related to COVID-19 vaccination, vaccine status verification, periodic employee testing, and related matters (referred to below as the “OSHA Mandate”). The OSHA Mandate covers: (1) private employers with at least 100 U.S.-based employees; and (2) State and local-government employers (including public schools) with 100 or more employees in states with an OSHA-approved State Plan (including Indiana). Importantly, OSHA’S comments accompanying the rule suggest OSHA may expand or impose additional similar rules on smaller/other employers in the future. The heart of the ETS is a requirement that covered employers require all non-exempted employees to be fully vaccinated against COVID-19 or undergo weekly testing (and other safety precautions) by January 4, 2022. In addition, there are interim steps that covered employers must complete over the next two months to ensure their ability to achieve full compliance by that deadline.

Legally, the OSHA Mandate became “effective” on Friday, November 5. It was temporarily blocked one day later by the U.S. Court of Appeals for the Fifth Circuit, but – as of this writing – that only affects Texas, Louisiana, and Mississippi. Indiana’s Attorney General has initiated a similar petition in the Seventh Circuit (which has jurisdiction over Indiana) to block the OSHA Mandate, but the court has not yet taken action in that case. There is no way to know how long any of these proceedings will take (or what the outcome will be).

As state governments and other litigants battle with the federal government in various courtrooms on varying timelines, the compliance deadlines within the OSHA Mandate itself remain fixed. While OSHA itself could decide to change those deadlines or provide for an initial period of non-enforcement based on developments after the original issue date, there is no legal principle requiring them to do so. In other words, covered employers who adopt a “wait and see” approach could find themselves legally exposed and scrambling for compliance if OSHA prevails in court. Penalties for employers who fail to comply with the OSHA Mandate follow the same schedule as other OSHA standards, which currently are capped at $13,653 per violation (for non-willful/non-repeat violations) and $136,532 per willful/repeat violation. The spending bill under consideration by Congress could increase those caps to $70,000 and $700,000, respectively.

Every organization is different, and different employers could weigh their legal, employee relations, and other operational concerns associated with this OSHA Mandate differently. Basic options range from assuming the ETS and its deadlines will remain in force to assuming it will be overturned or anywhere in between (i.e., taking some preparatory steps now but holding off on complete implementation pending the results of litigation). Following are further details of the OSHA Mandate’s requirements most employers will find relevant as they consider their risks and set their strategy:       

1) Employer-level Coverage:

Covered: Private employers with 100 or more employees as of the effective date. All employees anywhere in the U.S. are counted for coverage purposes, whether full- or part-time, and regardless of current vaccination status. Employers who fall below the coverage threshold after the effective date of the OSHA Mandate remain covered as long as the rule is in effect. Employees of affiliated entities may or may not be counted together depending on specific circumstances. For example:  

• All employees across all U.S. locations are counted, whether full-time or part-time, regardless of vaccine status.
• Two or more related entities may be regarded as a single (i.e., joint) employer if they handle safety matters as one company.
• For “traditional” franchisor-franchisee relationships (where the franchisee is separately owned and operated), the franchisor’s employees are counted separately from each franchisee’s employees.
• For coverage purposes, “host” employers do not count employees placed with them who remain otherwise employed by staffing agencies; the staffing agency counts those employees for purposes of determining its own coverage. For enforcement purposes though (e.g., determining who will be fined for a violation), traditional joint employer principles apply (meaning, in effect, both “host” and staffing agency must coordinate and share responsibility for compliance).
• For multi-employer worksites (such as construction sites), each organization represented at the site counts its own employees separately (e.g., the host employer, the general contractor, and each subcontractor). Host employer, general contractor, and each subcontractor only counts its own employees.

Covered: State and local-government employers with 100 or more employees in states with an OSHA-approved State Plan (including Indiana)

Not covered: 

• Federal contractors and subcontractors (who are subject to a separate vaccine mandate), and
• “Settings” subject to the Healthcare ETS issued by OSHA in June 2021.

2) Individual Employee-level Coverage: Employees at an otherwise covered Employer are not covered if they:

• Do not report to a workplace where other individuals (including coworkers, customers, or other non-employees) are present.
• Work from home.
• Work exclusively outdoors.

3) Employer Requirements:

By January 4, 2022 – Develop and implement a mandatory vaccination policy requiring all employees to be vaccinated by January 4, 2022, and all hired after that date to be vaccinated “as soon as practicable,” except those:

• For whom a vaccine is medically contraindicated.
• For whom medical necessity requires a delay in vaccination.
• Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

By December 6, 2021

• Determine the vaccination status of each employee, obtain “acceptable” proof of vaccination status (defined further in the ETS and below) from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Ensure 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 7 days before returning to work (if the worker is away from the workplace for a week or longer).
• Self-administered and self-read tests are not acceptable unless they are observed by the employer or an “authorized telehealth proctor.”
• Employees must not be required to undergo testing for 90 days after receiving a positive COVID-19 test or being diagnosed with COVID-19 by a licensed healthcare provider.
• Remove from the workplace employees who test positive for COVID-19, regardless of vaccination status, until they meet certain criteria. Specifically:
• Receive a negative NAAT confirmatory test.
• Meet the DCD’s Isolation Guidance return-to-work criteria, or
• Receive a recommendation to return to work from a licensed healthcare provider.
  1. Require covered employees who have not been fully vaccinated to wear a face covering when indoors or when occupying a vehicle with another person for work purposes.
  2. Provide a “reasonable” amount of paid time off to each employee for vaccination (up to 4 hours) and “reasonable” paid sick leave for vaccine side effects.
  3. The ETS itself does not require employers to pay for time spent receiving a vaccine outside working hours. But see the additional note below regarding potential obligations to pay for such time under the Fair Labor Standards Act.
  4. Inform each employee using an understandable language and literacy level about:
• The requirements of the OSHA Mandate as well as any employer policies and procedures established to implement it.
• COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated.
• The OSH Act’s prohibition on discrimination and retaliation against employees for reporting work-related injuries or illness or for exercising rights under the OSHA Mandate.
• The criminal penalties associated with knowingly supplying false statements or documentation.
  1. Report (to OSHA):
• Each work-related COVID-19 fatality within 8 hours, and
• Each work-related COVID-19 in-patient hospitalization within 24 hours.

4) Acceptable Proof of Vaccination Status: Employers must retain a physical or electronic copy of each covered employee’s documentation proving vaccination status, which can include:

• The record of immunization from a health care provider or pharmacy.
• A copy of the 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, or
• a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s)
• In cases where an employee does not possess their vaccination record (e.g., because it was lost or stolen), they can submit a signed and dated attestation including certain required representations and information.

Additional Notes:

• Employers can choose to comply with the OSHA Mandate by foregoing the weekly testing option and instead requiring employees to be vaccinated. However, the OSHA Mandate specifically requires employers who choose not to offer testing need to consider “reasonable accommodations” for individual employees who object to testing for medical or religious reasons. In appropriate cases, employers may be obligated to provide individual employees with a testing option as a form of accommodation, even if they need not offer it as an option to all employees broadly. 
• The OSHA Mandate’s requirement to provide up to four hours of paid time during work hours to get vaccinated and “reasonable” paid sick leave for vaccine side effects is in addition to – not instead of – obligations imposed by other laws.  The Fair Labor Standards Act (“FLSA”) may require employers to pay non-exempt employees both for the costs of testing and time spent testing. In addition, employers who do not offer a testing option to all employees may be required to pay the costs of testing for individual employees for whom testing would be a reasonable accommodation. 
• • 1. The Fair Labor Standards Act (“FLSA”) generally requires employers to pay for medical testing required as a condition (or precondition) to employment. Arguably, employees who do not wish to be vaccinated can “choose” to undergo weekly COVID-19 testing.  On the other hand, employees given two “optional requirements” to avoid discharge are still being required to comply with one or the other. To our knowledge, both of these arguments remain untested in court. The FLSA imposes independent liability on employers who fail to pay required employee costs – at least for non-exempt employees – so cautious employers may decide to pay for as much testing as feasible.  
    2. The FLSA also requires employers to pay employees for time spent – whether during or outside regular work hours – performing activities that are “integral and indispensable” to their job. The OSHA Mandate essentially takes the position that vaccination or testing is an inherent safety requirement for all covered positions.  In addition, the general FLSA obligation to pay employees for all time “worked” includes time spent on activities directed by the employer and “primarily” for the employer’s benefit. Analyzing this standard, the U.S. Court of Appeals for the Seventh Circuit (which includes Indiana) held that time spent in employer-mandated mental counseling outside the employee’s regular work shift was compensable working time – notwithstanding the concurrent health-related benefits to the employee – because the employee did not themselves seek the treatment. We are unaware of any rule or authority that would change this outcome in a situation where the employer’s control of the employee’s time was itself driven by a government mandate. Pending further legal developments, employers may wish to pay non-exempt employees for their time spent on testing – even though the OSHA Mandate doesn’t require it – to avoid the significant exposure associated with employee suits under the FLSA (and analogous state wage laws).
• Smaller employees may see similar regulations in the future – OSHA “needs additional time to assess the capacity of smaller employers and is seeking comment to assist with the determination.”
• OSHA is also seeking comments related to the possibility of imposing a stricter mandate without alternative compliance options.
• Indiana law prohibits state and local government employers (but not private employers) from issuing or requiring COVID-19 vaccine passports (defined as written, electronic or printed information regarding an individual’s immunization status). So, Indiana law conflicts with the OSHA Mandate’s requirement for employers to obtain a physical or electronic copy of an employee’s vaccination status. The OSHA Mandate explicitly claims to preempt state law (and federal workplace safety regulations generally do preempt inconsistent state safety laws – if the federal regulation otherwise survive challenge). However, it appears Indiana state and local government employers can still simultaneously comply with both the OSHA Mandate and state law by implementing a policy that lets employees choose between weekly testing or providing voluntary proof of vaccination. 

Blog information last updated Nov. 11, 2021.

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