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On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released the long-awaited COVID-19 Emergency Temporary Standard (ETS) for employers with 100 or more employees. At the same time, the Centers for Medicare and Medicaid Services (CMS), an agency of the U.S. Department of Health and Human Services, also released an interim rule (“CMS Rule”) regarding mandatory vaccination requirements for employees at health care facilities that participate in the Medicare and Medicaid programs. As has been widely reported, both the CMS Rule and the ETS include a deadline of January 4, 2022, for covered employees to be fully vaccinated. However, most aspects of the ETS will be in effect starting December 5, 2021. Key takeaways for employers from the OSHA ETS, explained in detail below, include:
• All private employers with 100 or more employees (whether full-time, part-time, temporary, or provisional) must create, implement, and enforce a policy regarding vaccination against COVID-19, testing, and additional safety protocols by December 5, 2021. Employers may choose to require all employees to be vaccinated as a condition of employment, or can have a policy that allows employees to remain unvaccinated, so long as they comply with testing and masking rules.
• Employers must collect and maintain records of their employees’ vaccination statuses by December 5, 2021. As of that date, all workers who are not fully vaccinated must wear face coverings when indoors or inside a vehicle with others for work purposes.
• By December 5, 2021, employers must encourage and support vaccination by:
⁃ providing workers with information about vaccination policy, regulations, and safety;
⁃ permitting paid time off to receive a vaccine; and
⁃ allowing paid sick leave for recovery from vaccination side effects.
• Starting January 4, 2022, employees who are not fully vaccinated must be tested for COVID if they come to the workplace. The ETS provides new protocols for employees to return to work after a COVID-positive test result.
• The Federal regulations supersede and pre-empt any contrary state or local law.
The directive to create national COVID-19-related workplace safety regulations came from President Biden as part of the administration’s Path out of the Pandemic plan (“Plan”) announced on September 9, 2021. The Plan includes a goal of universal vaccination against the coronavirus, including requirements that all federal employees and contractors are fully vaccinated, and calls for all private companies with 100 or more employees to ensure that their workforce is either fully vaccinated or tested weekly. In its announcement, OSHA indicates that the ETS will cover two-thirds of the nation’s workforce. The White House has also clarified that the ETS is not applicable to federal contractors subject to the Executive Order regarding mandatory COVID safety protocols.
Who Is—and Who Is Not—Covered Under the ETS?
The rules apply to all employers with 100 or more employees at any time that the ETS, which is effective as of November 5, 2021, remains in effect. The 100-employee threshold includes full-time and part-time workers, temporary workers (as long as they are on the employer’s payroll), provisional and seasonal employees, fully remote employees, as well as any minors (younger than 18). Individuals other than employees working on site or in close proximity to an employer’s workforce do not count toward the 100-employee threshold. For instance, independent contractors and employees of a staffing agency at a host employer are not counted towards the 100-employee threshold.[4] When employees of a staffing agency are placed at a host employer location, only the staffing agency would count these workers for purposes of the 100-employee threshold. However, a host employer may require the staffing agency to ensure that temporary employees comply with the host employer’s policy. [continued]
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