Remote Workers Are Exempt from OSHA Requirement to Be Vaccinated or Test for COVID-19

Editor's Note: On Dec. 17, the 6th U.S. Circuit Court of Appeals lifted the stay on the vaccine-or-testing directive for businesses with at least 100 employees companywide. This content will be updated as more information becomes available.

The Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring vaccination against COVID-19 or at least weekly testing applies to employers with at least 100 employees but exempts remote workers. What are the practical ramifications of this exemption, as well as the exemption for employees who work exclusively outdoors?

"This law will certainly be challenged in court, but by limiting the scope of the rule to exclude those who don't come into the workplace or who work outside, and by allowing testing and masks as an alternative, OSHA has made it more likely this rule will withstand judicial scrutiny," said Michael Menssen, an attorney with Stoel Rives in Salt Lake City.

Note that while remote workers and those who work exclusively outdoors are exempt from the vaccine-or-testing requirement, they are included in determining if an employer has 100 workers.

Remote-Worker Exemption

Employees who report to workplaces where no other people are present do not face grave danger from occupational exposure to COVID-19 because such exposure requires the presence of other people, OSHA noted.

For those who work exclusively from their homes or from workplaces where no other co-workers or customers are present, such as a remote worksite, the chances of being exposed to the coronavirus through a work activity are negligible.

Therefore, OSHA exempted those workers who do not come into contact with others for work purposes.

"The vaccination, testing and face mask requirements under the ETS do not apply to remote workers," said Mini Kapoor, an attorney with Haynes and Boone in Houston. But the requirement to record the vaccination status of all employees applies to remote workers.

Vaccination status is a confidential medical record and should be treated as such with proper protections, said Ashley Cuttino, an attorney with Ogletree Deakins in Greenville, S.C.

Exemption for Employees Who Work Exclusively Outside

Employees who work exclusively outside also were exempted, as they face a much lower risk of exposure to coronavirus at work, OSHA noted. Their workplaces typically do not include any of the characteristics—such as being indoors, lack of ventilation and crowding—that normally enable transmission to occur.

Studies overall found that the risk of outdoor transmission was less than 10 percent of the risk of transmission in indoor settings, OSHA said.

Agricultural workplace settings have experienced significant coronavirus infections, OSHA stated. Nonetheless, it concluded transmission in these settings is difficult to characterize because many jobs in the sector include both outdoor and indoor activities.

OSHA determined that it did not have evidence at this time to establish coronavirus as a grave danger for general work activities in outdoor settings.

Because most workers who work outdoors likely work indoors at least some of the time, the agency also determined that no more than 10 percent of workers who primarily work outdoors also exclusively work outside.

Consequently, it estimated that only 9 percent of landscaping and groundskeeping workers, 8 percent of construction laborers and 5 percent of highway maintenance workers would be exempt.

"The employee's work must truly occur outdoors, which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite," said Todd Logsdon, an attorney with Fisher Phillips in Louisville, Ky.

OSHA's estimate of employees who work exclusively outdoors does not account for employers that need to only make slight adjustments to their current work practices to ensure that their employees qualify for the outdoor exemption, such as by holding "toolbox talks" outdoors instead of in a traditional indoor location.

To be covered by the exemption for employees who work exclusively outdoors, the employee must not routinely occupy vehicles with other employees as part of work duties, according to the ETS frequently asked question 2.B.

The employee must work outdoors for the duration of every workday except for minimal use of indoor spaces where others may be present, such as a multi-stall bathroom or an administrative office—as long as the time spent indoors is brief or occurs exclusively in the employee's home, such as a lunch break at home, noted Tyson Horrocks, an attorney with Holland & Hart in Las Vegas.

The exemption for those who work exclusively outdoors is "extremely narrow," cautioned Brian Patterson, an attorney with Akin Gump in Houston and Dallas. "Employers should be hesitant to claim the exemption for employees who regularly spend more than 10 total minutes indoors in a workday."

[SHRM members-only webcast: Guidance on OSHA’s Vaccination and Testing Emergency Temporary Standard for COVID-19]

Transition Employees to Remote Work?

A remote-worker exemption "practically means that a large number of employees across the United States will not be covered under the ETS," said Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Fla. "Employers likely can transition employees to remote work, so long as the employee meets the remote-work definition in the ETS."

Although employers would have fewer employees to bring into compliance if they did that, businesses that rely on office collaboration may suffer as a result of a transition to remote work, Elkins noted.

Historically, most employers were reluctant to provide remote work to employees because of the feared drops in productivity and accountability, although COVID-19 has changed that perspective for many businesses, said John Ho, an attorney with Cozen O'Connor in New York City. "It's ultimately a cost-benefit analysis for each individual business to undergo—that is, the administrative costs and burdens of complying with the ETS versus operational impact on remote work," Ho said.

The employer should consider any other potential impacts of that decision on the worker, the work and the morale of the rest of the workplace, Logsdon said.

The pros would be one less person the employer has to ensure is testing weekly and a reduction in administrative costs. A con might be a hit to employee morale from vaccinated employees who also want to work remotely, he noted.

There also might be discrimination claims if unvaccinated employees want to be in the workplace and believe they are missing out on opportunities, Logsdon added.

Expect more remote-work requests from employees who don't want to be vaccinated or tested weekly, said Eric Hobbs, an attorney with Ogletree Deakins in Milwaukee.

"Employers who require all employees to work remotely because of the ETS will be setting a precedent that the position can be performed remotely," Patterson said. "Doing so will make it difficult for employers to refuse future requests, regardless of the reason, from employees in the same or similar positions to work remotely as the refusal could serve as the basis for a discrimination claim. Accordingly, employers should consider the long-term impact of the decision to allow employees to work remotely due to the ETS."