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11.05.2021 | Legal Advisory

In early September, as part of its six-pronged COVID-19 Action Plan, the White House directed the Occupational Health and Safety Administration (“OSHA”) to develop and implement a rule requiring all businesses with 100 or more employees to ensure that all employees are fully vaccinated against COVID-19 or undergo testing on at least a weekly basis. On November 4, OSHA issued an Emergency Temporary Standard (“ETS”) that sets forth, among other requirements, the parameters of the vaccine mandate applicable to large private-sector employers. The ETS formally took effect on November 5, 2021. The requirements of the ETS are as follows:

Scope

The new rules in the ETS requiring employee vaccination against COVID-19 apply to entities that employ 100 or more employees. In determining whether they meet that threshold, employers should consider the following guideposts:

• Covered employers include single corporate entities with a total of 100 or more employees, including employers with 100 or more employees in the aggregate, even if the employees work across multiple locations, none of which must individually employ more than 100 employees.
• Part-time and remote employees are included in the count of total employees.
• Two or more related entities may be regarded as a single employer if the entities supervise and coordinate safety matters as one company.
• In the case of an independently owned and operated franchise, the franchisee would only count employees of that individual franchise.

The vaccine mandate does not apply to:

• Workplaces covered by the Guidance for Federal Contractors and Subcontractors or healthcare settings. For employers falling within these rules, they must follow their own already existing vaccination requirements.
• Employees who work from home or employees who work exclusively outdoors.
• Employees (i) for whom a vaccine is medically contraindicated, (ii) who due to medical necessity require a delay in vaccination, or (iii) who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

The ETS supersedes any state or local laws that are inconsistent with the ETS (concerning, for example, vaccinations, testing, or face coverings), unless approved by OSHA. We expect that the inevitable conflict between state laws and federal authority will be the subject of follow on debate and litigation.

Vaccine Mandate Logistics

Proof of Vaccination.

Employers must require that employees provide acceptable proof of vaccination status. An employee who does not provide acceptable proof of vaccination must be treated by the employer as not fully vaccinated. Employers must maintain those documents demonstrating each employee’s proof of vaccination and a roster that reflects each employee’s vaccination status. Both the records and the roster are to be treated as confidential medical records.

Paid Time Off.

An employer must provide up to four hours of paid time off, including travel time, at the employee’s regular rate of pay to allow the employee to obtain the vaccine. The employer must also provide “reasonable” time and paid sick leave to allow the employee to recover from the side effects of each dose.

Information Provided to Employees.

Employers must inform employees about the requirements of:

• The new rule and any employer policies intended to implement the rule;
• Vaccine efficacy and safety, by providing the CDC’s document entitled, “Key Things to Know About COVID-19 Vaccines”;
• Employee anti-retaliation protections that prohibit employers from discharging or discriminating against any employee who reports a work-related injury or illness, files an occupational safety or health complaint, or otherwise exercises any rights pursuant to the OSH Act; and
• The provisions of federal law and the OSH Act that provide for criminal penalties for knowingly supplying false information or documents.

Testing Alternative

A covered employer may elect to establish a policy allowing an employee to choose to either be fully vaccinated or provide proof of weekly testing and wear a face covering in the workplace.

Acceptable Tests.

Tests that meet the requirement are any FDA-authorized tests, including those approved in an Emergency Use Authorization. The test cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth provider.

Frequency of Testing.

Employees must be tested at least once every seven days and must provide documentation to the employer no later than the seventh day following the date on which the employee last provided a test result. If an employee has been away from the workplace for seven or more days, the employee must be tested within seven days prior to returning to the workplace and must provide the employer with documentation of the test result upon returning. An employee who does not provide documentation of a COVID-19 test result as required must be excluded from the workplace until the employee provides the test result. Employers have an obligation to maintain the records of the test results of their employees.

Cost of Employee Testing.

The ETS does not require employers to cover the cost of the test. Some state laws, however, would require the employer to bear the cost of all employer-requested medical examinations. See, for example, M.G.L. c. 149, § 159B. As noted above, we expect the interplay between OSHA’s rule and state and local laws to be the subject of further debate and perhaps litigation. At this juncture, our counsel to Massachusetts-based employers would be to comply with Massachusetts state law.

Face Coverings.

Face coverings are required for those employees who opt into a regular testing option (if offered by the employer). Face coverings must be worn at all times while indoors or in a vehicle with another person for work purposes except:

• When the employee is alone in a room with floor to ceiling walls and a closed door;
• For a limited time while the employee is eating and drinking;
• If the employee is wearing a respirator or face mask; or
• Where the employer can show that use of a face covering is infeasible or would create a hazard.

Employers may not prevent any employees, customers, or visitors from voluntarily wearing face coverings.

Compliance and Reporting

Compliance Deadlines.

Employers must be in compliance with the rules regarding employee vaccination or weekly testing by January 4, 2022. Employers must be in compliance with the other requirements of the ETS—namely, the rules concerning face coverings for employees who are not fully vaccinated and employer reporting obligations—by December 5, 2021.

OSHA Reporting.

Employers must report to OSHA:

• Each work-related COVID-19 fatality within eight hours of the employer learning of the fatality; and
• Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning of the in-patient hospitalization.

As with any rules and regulations concerning the COVID-19 pandemic, there likely will be adjustments over time, especially as OSHA receives feedback from employers and localities. 

Learn More in Our Upcoming Webinar

For more information, please register to attend Nutter’s upcoming webinar: “New Rules for Employers on Employee COVID-19 Vaccination” on Tuesday, November 9, 2021 at 3PM EST.

This advisory was prepared by Nutter’s Labor, Employment and Benefits practice group. For more information, please contact any member of the LEB group or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.