December Deadline for Emergency Temporary Standard Looms

Allen Smith, J.D. By Allen Smith, J.D. November 16, 2021
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​The first major deadline of the emergency temporary standard (ETS)—which is Dec. 6, according to the Occupational Safety and Health Administration (OSHA)—requires employers to prepare their COVID-19 vaccination policies and begin having unvaccinated employees wear masks.

By Jan. 4, 2022, employers must ensure employees who are not fully vaccinated are also tested for COVID-19 at least weekly or within seven days before returning to work if away from the workplace for a week or longer.

OSHA has taken some pressure off employers by suspending implementation and enforcement of the ETS after an appellate court stayed the rule. But OSHA stated it "remains confident in its authority to protect workers in emergencies."

"It will take weeks of planning for an employer to comply with the ETS deadlines if it does survive all legal challenges," said Ashley Cuttino, an attorney with Ogletree Deakins in Greenville, S.C. "Employers do not want to find themselves in a position where they are not ready if the ETS survives." That may be a big "if"—see a recent Wall Street Journal opinion piece betting on the rule's ultimate defeat—but risk-averse organizations may want to prepare in case the OSHA rule eventually is upheld.

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December Requirements

Under the ETS, an employer must do the following actions by Dec. 6, according to Amanda Sonneborn, an attorney with King & Spalding in Chicago:

  • Establish a COVID-19 mandatory vaccination policy or vaccine-or-testing policy.
  • 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.
  • Establish a policy to support employee vaccinations by providing employees reasonable time, including up to four hours of paid time off, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects. A primary vaccination dose means either one of two initial doses of the Pfizer or Moderna shot or one initial dose of the Johnson & Johnson shot; it does not refer to a booster shot.
  • Require employees to promptly provide notice of a positive COVID-19 test or diagnosis.
  • Remove any employee who received a positive COVID-19 test or diagnosis and keep that employee out of the workplace until the individual meets criteria for returning to work.
  • Ensure that all unvaccinated employees begin wearing face masks when indoors or when occupying a vehicle with another person for work purposes.
  • Provide each employee with information, in a language and at a literacy level the worker understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS. There also should be information on vaccine efficacy, safety and the benefits of being vaccinated from the U.S. Centers for Disease Control and Prevention's Key Things to Know About COVID-19 Vaccines. There should be a summary of protections against retaliation and discrimination and laws that provide for criminal penalties for knowingly supplying false statements or documentation as well as procedures to be used for requesting records.
  • Start reporting work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within 24 hours.
  • Make available for examination and copying an employee's COVID-19 vaccine documentation and any COVID-19 test results of that worker to the employee and anyone having written authorized consent of the employee. Employers are also required to make available to an employee, employee representative or OSHA the total number of fully vaccinated employees and number of employees at a workplace.

"The first step is to determine if you are a covered employer and to obtain the vaccination status of your employees," Cuttino said. The ETS covers businesses with at least 100 employees companywide. "This information will help an employer determine if a vaccine mandate or if the testing-and-masking route is best for their individual company," she added.

James Brudney, a Fordham Law School labor law and employment professor in New York City, recommended providing a short summary version at the front of any longer policy.

James Hermon, an attorney with Dykema in Detroit, noted that OSHA takes the position that employers may not offset other leaves, such as sick or vacation time, from the four hours of paid time that must be provided to employees to receive vaccination. "While an employer may use accrued sick leave to offset against the time spent by an employee to recover from vaccination, an employer may not require an employee to use future sick leave or go into a negative paid sick leave balance for that purpose," he said.

State OSHA Plans

Employers should bear in mind that 21 states and Puerto Rico currently maintain their own state OSHA plans. "The dates in the OSHA ETS are applicable to federal OSHA states only," Cuttino said.

State-plan states have 30 days from the issuance of the ETS, Nov. 5, to adopt the federal standard or inform OSHA of their plans to enact some variant of the ETS.

The state OSHA plans must be as stringent as the federal OSHA mandate, but some states might not adopt an ETS in a timely manner, which could set up a showdown between those states and federal OSHA, assuming the federal ETS survives legal challenges, Cuttino said. The state OSHA plan states are Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming. Of these states, Alaska, Arizona, Iowa, Kentucky, South Carolina, Tennessee, Utah and Wyoming have sued to stop the emergency temporary standard.

Which Policy Is Best?

In deciding whether to require vaccination or allow weekly testing as an option, employers should consider these questions, according to Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City:

  • How many employees are already vaccinated?
  • What is the nature of work being done? For example, is it mostly remote or are people sitting behind closed doors, or does the nature of the work require more in-person interaction?
  • What safeguards does the employer have in place?
  • Are there worker shortages? How may a mandatory vaccination policy affect those shortages?

"It may become prohibitively costly for an employer to permit employees to test if the employer is required to pay for such testing through state or local law," Garofalo said. 

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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