Today, the Occupational Safety & Health Administration (“OSHA”) released its much-anticipated Emergency Temporary Standard (“ETS Rule”) relating to Vaccination and Testing. A copy of the text of the rule is available here. The OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard was announced in conjunction with the Centers for Medicare and Medicaid Services (CMS) vaccination requirement which covers healthcare workers at its 76,000 participating hospitals and facilities.
The OSHA ETS Rule requires large employers (i.e., those with 100+ employees) to develop a COVID-19 vaccination policy ensuring that all employees are vaccinated or submit to weekly COVID-19 testing by January 4, 2022. The OSHA ETS Rule also includes requirements that employers provide certain leave and paid time off benefits to employees who take time off to be vaccinated or recover from receiving the COVID-19 vaccine. Employers must also ensure that employees who are not “fully vaccinated” provide the employer with documentation showing that they have tested negative for COVID-19 in the last 7 days and that they wear face masks while indoors. Unvaccinated workers who fail to provide their employer with a negative COVID-19 test are not eligible to enter the workplace. Employers are also required to immediately remove workers who test positive for COVID-19, although the OSHA ETS Rule does not require that the employer continue to pay these employees.
While we are still unpacking many of its requirements, provided below is a brief summary of key provisions of the OSHA ETS Rule. As noted below, we will be providing additional guidance in the form of a Frequently Asked Questions (“FAQs”) for SMACNA Contractors.
Note: The italicized text below is taken from OSHA’s own guidance.
The rule will be effective upon publication in the federal register, which is expected tomorrow (i.e., November 5), but employers will be given 30 days (until December 5) to comply with all of the new requirements (except vaccination). With respect to the requirement that employers implement a “soft” vaccine mandate (i.e., vaccination or weekly testing), this provision will not go into effect for 60 days, which means employers will have until January 4, 2022 to comply with this portion of the OSHA ETS Rule.
The OSHA ETS Rule will be in effect for six months, at which time OSHA must replace the ETS with a permanent standard.
Contractors with 100 or more employees are covered by the OSHA ETS Rule. The OSHA ETS Rule specifies that the employer counts all part-time and full-time employees, regardless of location, for calculating the 100-employee threshold. However, the employer does not need to count true “independent contractors,” which would include employees of subcontractors (provided that they are not “jointly employed” by the contractor).
In addition, OSHA’s FAQs make clear that, for purposes of the 100-employee threshold, contractors do not need to count employees of other companies, even if both company’s workers are performing work on the same jobsite:
2.A.9. How are employees counted at multi-employer worksites?
On a typical multi-employer worksite such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees; the host employer and general contractor would not need to count the total number of workers at each site. That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite.
OSHA’s FAQs also make clear that the ETS Rule applies to union and non-union contractors:
2.F. How will the ETS apply to unionized workplaces?
Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS. Nothing in the ETS, however, prevents employers from agreeing with employees and their representatives to implement additional measures, and the ETS does not displace collectively bargained agreements that exceed the requirements of the ETS. As examples of additional measures that could be implemented via collective bargaining, employers might agree to cover the costs of face coverings or medical removal, or to adopt a requirement that all employees, regardless of vaccination status, wear face coverings while working indoors.
No, contractors are not required by the OSHA ETS Rule to require employees to be vaccinated as a condition of employment, provided the contractor implements a “soft” vaccine mandate. Specifically, the OSHA ETS Rule provides that, rather than implementing a “hard” vaccine mandate, employers have the option of implementing a “soft” vaccine mandate that requires employees to either: (a) be vaccinated for COVID-19 or (b) submit to weekly COVID-19 testing. In addition to weekly testing, unvaccinated workers are also required to wear a mask when indoors and when occupying a vehicle with another person for work purposes, unless certain exceptions apply.
If a contractor implements a “soft” mandate, unvaccinated workers are required to provide documentation showing a negative COVID-19 test every 7 days before they are eligible to report to the contractor’s “workplace,” which is anywhere work is performed except if that location is the employee’s residence. Thus, employees working remotely do not need to submit to weekly testing.
If an employee fails to submit a weekly negative COVID-19 test, then the contractor is required to “keep that employee removed from the workplace until the employee provides a test result.” In fact, OSHA’s FAQs make clear that an employer cannot allow an unvaccinated worker without a negative test to come to the worksite, even if they are wearing a mask:
6.C. Can an unvaccinated employee still come to the workplace if they did not obtain a COVID-19 test but wears a face covering and is isolated while on site?
No. If an employee does not provide the result of a COVID-19 test as required by paragraph (g)(1) of the standard, the employer must keep the employee removed from the workplace until the employee provides a test result. In addition to being tested for COVID-19 on a weekly basis, unvaccinated employees must also wear a face covering at the workplace.
Instead, the contractor must ensure that the employee submits evidence of a negative COVID-19 test (within the past 7 days) before returning to work.
No, but the answer may depend on state law and your individual collective bargaining agreements. Specifically, the OSHA ETS Rule makes clear that employers do not need to pay for COVID-19 testing unless they are required to do so by federal, state, or local law or the parties’ collective bargaining agreement:
6.G. Does the ETS require employers to cover the costs associated with COVID-19 testing?
No. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. OSHA notes that the ETS also does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.
OSHA expects that some workers and/or their representatives will negotiate the terms of payment. OSHA has also considered that some employers may choose to pay for some or all of the costs of testing 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. It is also possible that some employers may be required to cover the cost of testing for employees pursuant to other laws or regulations. The subject of payment for the costs associated with testing pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.
To repeat, employees that choose not to be vaccinated under the OSHA ETS Rule are expected to pay for their own COVID-19 testing unless there is a contrary state law or provision in the collective bargaining agreement that requires the contractor to pay for the cost of COVID-19 testing.
Yes, according to the OSHA ETS Rule, covered employers are required to provide employees with up to “4 hours of paid time, including travel time, at the employee’s regular rate of pay” for each dose of the COVID-19 vaccine. Employers are not permitted to require employees to use existing paid sick leave balance, if any.
However, if an employee chooses to get vaccinated over the weekend or during non-working hours, then the employee is not eligible for pay. As the OSHA FAQs explain:
5.C. If an employee gets vaccinated outside of work hours, such as on a Saturday, do I have to still grant them reasonable time for vaccination?
No. 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. . . .
In addition, the OSHA ETS Rule requires covered employers to provide employees with “reasonable time and paid sick leave to recover from side effects experienced following” COVID-19 vaccination. OSHA has made clear that, in this circumstance, employers can require the employee to use any existing paid sick leave balances for time the employee spends recovering from side effects experienced following a vaccination dose.
No, the OSHA ETS Rule does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19; however paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Yes, after the announcement today, several states have announced that they intend to challenge the OSHA ETS Rule in court. These legal challenges will need to be addressed by the courts, so contractors should not assume that the ETS Rule will be struck down.
For covered contractors, time is of the essence. In the coming days, SMACNA will be providing additional guidance in the form of additional FAQs and other guidance.