OSHA Emergency Temporary Standard

By Trent Cotney, Cotney Attorneys & Consultants.

The standard requires employers to have proof of vaccination or weekly testing for their employees. 

On November 4, 2021, U.S. Labor Department (“DOL”) Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) requiring all private companies with 100 or more employees to implement a vaccination policy ensuring their workforces are either fully vaccinated or undergo weekly testing and wear masks. OSHA indicates that this affects over 80 million workers.

Who is covered by the ETS?

The ETS now requires all companies with 100 or more employees to be vaccinated or provide a weekly negative test result, at a minimum. The ETS does not apply to remote workers (e.g., employees who work from home), workers in a workplace without any other individuals present, and workers who work exclusively outdoors.

Due to the ETS not applying to such workers, this means that individuals who work from home can be unvaccinated and do not have to succumb to weekly testing. However, the remote worker must submit a negative COVID-19 test result within seven days of returning or attending the workplace.

Moreover, workers who exclusively work outdoors can also be unvaccinated and not submit weekly testing. In general, to be considered an outdoor worker, you must work outdoors on all days, cannot consistently occupy vehicles with other employees, and only present yourself indoors minimally (e.g., to use the restroom).

There are also exceptions to the mandate, of course; individuals who require reasonable accommodation on the basis of a have a bona fide disability or a sincerely held religious belief are exempted from receiving the COVID-19 vaccine or providing proof thereof.

How to calculate 100 Employees

Although the mandate does not apply to certain employees, they are included in the calculation of 100 or more employees. All employees, including remote workers and outdoor workers, count toward the 100 threshold. If an employer has 100 or more employees at any point the ETS is in place, this ETS applies for the to the employer for the duration of the standard. For example, if an employer has 105 employees at any time the ETS is in place, but then loses seven employees, that employer would continue to be covered by the ETS.

If the employer has fewer than 100 employees, the standard will not apply to that employer. However, if that same employer hires more workers, including remote and outdoor workers, and eventually employs 100 or more total employees while the ETS is in place, then the employer is required to comply with the ETS requirements. For example, if the employer has 95 employees and then hires seven employees, that employer would have 102 employees and would have to start complying with the ETS requirements. Thus, if you fall within the 100 employee threshold at any time the ETS is in place, you must comply with the requirements for the duration of the ETS.

How to determine vaccination status?

As mentioned, employers must develop and implement a vaccination policy against COVID-19 or implement a policy whereby unvaccinated workers undergo weekly COVID-19 testing and wear masks while at work. Should an employer require every employee to be fully vaccinated, the employer must obtain proof of vaccination from each covered employee.

Some of the acceptable documentation for proof of vaccination include the immunization record from a health care provider or pharmacy, a U.S. COVID-19 Vaccination Record Card, medical records proving vaccination, among others.

Once the employer receives proof of vaccination from its employees, the ETS requires that employers maintain records of employees’ vaccination status. Furthermore, employers must maintain and retain all weekly test results. Note that the documents are medical records and, as a result, must be kept strictly confidential.

Weekly testing and paid time off

For employees who seek vaccinations, employers must provide employees up to four hours of paid time to receive the vaccine, and reasonable sick leave to recover from any side effects that may occur. For employees who are unvaccinated, employers must ensure those employees undergo, at a minimum, weekly COVID-19 testing and promptly provide a negative test result.

The ETS does not require employers to pay for employees’ weekly testing, however, as long as payment is not required by other state laws, regulations, or collective bargaining agreements. It is imperative for employers to ensure compliance with any laws that may require the employer to pay for each weekly test.

What’s next?

The effective date of the ETS is November 5, 2021. Thus, employers have 30 days to comply with most of the provisions and 60 days to comply with the weekly testing requirements. Lawsuits have been filed, challenging the ETS. As you may be aware, the 5th Circuit Court of Appeals issued a temporary stay as to the enforcement of the ETS. Other lawsuits have also been filed. Whether the challenges are ultimately successful or not, employers should be fully prepared to comply with the ETS requirements as the penalties for noncompliance could amount to approximately $14,000.00 per violation (and more for repeated violations).

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is an advocate for the roofing industry and General Counsel to NRCA and several other industry associations. For more information, please visit www.cotneycl.com or call 866.303.5868.