On November 5, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standards (ETS) mandating that employers with 100 or more employees ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis (every 7 days). The ETS requires compliance by January 4, 2022 with important disclosures required in early December 2021.  Notably, the United States Court of Appeals for the Fifth Circuit issued an order over the weekend staying the ETS until further briefing is submitted and arguments heard.

The ETS applies to all employers under OSHA authority and jurisdiction with 100 or more employees regardless of industry (excluding federal mandate on federal contractors and federal mandate on health care workers). While employers are governed by the requirements of OSHA, some or all of their employees may not be. There are some exceptions, but they are vaguely defined. For example, employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees that work from home, or employees who work exclusively outdoors may be exempt from being vaccinated or tested on a weekly basis.

The requirements from OSHA are lengthy and confusing. Employers should review the requirements carefully and note any disparities in the requirements based on their circumstances (i.e. employee count, employees covered, etc.). Some of the more significant parts of the ETS are as follows.

• Employees Must Be Vaccinated by January 4, 2022 and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis: All covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis. The ETS requires employers to 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). In addition, the employer must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS lays out the wide variety of tests that comply with the standard. The ETS does not require employers to provide or pay for tests; however, employers may be required to pay for testing because of other laws or collective bargaining agreements.
• Employees Must be Paid for the Time it Takes to Get Vaccinated: All covered employers are required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
• All Unvaccinated Employees Must Wear Masks: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
• Compliance Date: While the testing requirement for unvaccinated workers will begin after January 4, 2022, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – by December 5, 2021.
• Record Keeping: Employers are subject to requirements for reporting and recordkeeping. Employers should review the ETS for the details and the type of vaccination records and/or testing records are needed.
• Determination of employee vaccination status. The ETS requires employers to 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.
• Employee notification to employer of a positive COVID-19 test and removal. The ETS requires employers to: (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) 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; (3) keep removed employees out of the workplace until they meet criteria for returning to work.
• Information provided to employees. The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand:

(1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;

(2) the CDC document “Key Things to Know About COVID-19 Vaccines”;

(3) information about protections against retaliation and discrimination; and

(4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

• Reporting COVID-19 fatalities and hospitalizations to OSHA. The ETS requires employers to 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.
• Availability of records. The ETS requires employers to 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. Employers are also required to 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.

As expected, lawsuits have already been filed challenging the constitutionality of the ETS issued by OSHA. In particular, a lawsuit was filed directly in the United States Court of Appeals for the Fifth Circuit. On November 6^th, the 5^th Circuit issued an order staying OSHA’s ETS while the petition for review is brief and heard.  As the different parties to the dispute argue their case to the Court, employers should consult with their human resources department and/or employment counsel regarding their eligibility criteria for the ETS issued by OSHA, the requirements of the ETS, and the effect the lawsuit filed in the 5^th Circuit could have on the employer moving forward.

If you would like to consult with an attorney on these OSHA requirements, compliance, eligibility of the requirements, and/or a review of your company’s COVID-19 protocol and/or on any projects on which you work, the attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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