OSHA COVID-19 Emergency Temporary Standard Arrives — With A Surprise Extension For Federal Contractors To Comply With Vaccination Mandate

We all knew it was coming: On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its anticipated Emergency Temporary Standard (ETS) that President Biden first announced back on September 9 as part of his “Path Out of the Pandemic” action plan. The ETS requires employers with 100 or more employees to ensure that their workers either have their final vaccination dose by January 4, 2022 or be tested for COVID-19 on at least a weekly basis if not fully vaccinated by that date.  

States with their own state OSHA plans, such as California, must, within 30 days, adopt the ETS or standards that are “at least as effective” as the ETS. Employers are free to implement more protective COVID-19 mandates, including mandatory vaccination requirements at some work locations, and “vaccinate or test” at others, but the ETS is expressly intended to supersede any state or other laws interfering with the vaccine, testing and masking requirements of the ETS.      

Significantly, OSHA’s ETS does not apply to federal contractor workplaces that are covered by Executive Order 14042 and the Safer Federal Workforce Task Force Guidance (collectively, the “federal contractor mandate”), which impose mandatory vaccination for the broadly defined category of “covered contractor employees.” We previously discussed the federal contractor mandate in detail here and here. 

Now for the twist: In conjunction with OSHA’s ETS, the White House announced that it was aligning the vaccination deadline of the federal contractor mandate with the ETS vaccination deadline. As a result, January 18, 2022 is now the date by which federal contractors must ensure that covered employees are fully vaccinated. For some contractors and subcontractors subject to the federal contractor vaccination mandate, the extension from the previous December 8, 2021 deadline provides much needed additional time to comply.  

Other key provisions of OSHA’s ETS include:

• Those employed firm- or company-wide at any time the ETS is in effect count toward the ETS’s 100 or more employee threshold. This includes part-time, seasonal and temporary workers, but does not include staffing agency employees.
• Employees while working from home, employees who work “exclusively outdoors” (which may include some but not all construction workers), and employees who do not report to a workplace where coworkers or customers are present, are excluded from the “vaccinate or test” requirement.
• Time for employees to become “fully vaccinated” must be paid time—up to 4 hours per shot. Employees cannot be required to use personal time such as vacation or sick leave. Employers must also provide reasonable paid time off for employees to recover from any side effects experienced following each vaccine dose, although the ETS allows employers to require employees to use accrued paid sick time to recover.
• The ETS allows but does not require employers to pay for costs associated with COVID-19 testing. Accordingly, employees refusing to get vaccinated may bear a financial burden for their decision. Other laws or collective bargaining agreements may impact testing payment requirements.
• Employers must establish, implement and enforce a comprehensive written vaccination policy, create a roster of each employee’s vaccination status and preserve acceptable proof of vaccination. Employers who have already secured documentation on vaccination status need not request it again.
• Employees who are not fully vaccinated are required to wear a face mask indoors, with limited exceptions.   

OSHA has provided guidance, policy templates, and FAQs on their website. Attorneys at RJO will continue to monitor and report on these evolving requirements. If you have questions about the latest requirements, please contact one of the RJO attorneys with whom you regularly work, or the authors of this article.

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