OSHA ETS Requirements

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Summary of the Law and Procedural Background

On November 5, 2021, the Occupational Safety & Health Administration (OSHA) published its long-awaited Emergency Temporary Standards (OSHA ETS), intended to comprehensively address safety and health issues of COVID-19. The 450+ page new law mandates vaccines or weekly testing for employees of all employers in the country with at least 100 total employees.

The law’s purpose is to reduce the number of COVID-19 illnesses and deaths by requiring larger employers, who presumably have a greater ability to implement a policy such as this, to either mandate vaccines for all employees or adopt a hybrid practice of voluntary vaccination and mandatory weekly testing for those who choose not to be vaccinated. In addition, the law mandates face coverings for the unvaccinated and the removal of employees who test positive.

The OSHA website has a lot of useful materials including summary sheets and draft policies. However, when using template policies, particularly those based on federal law, it is imperative that it be reviewed and updated so it complies with California law. See https://www.osha.gov/coronavirus/ets2 https://www.osha.gov/coronavirus/ets2

Multiple lawsuits were filed opposing the law, and it was stayed by the Fifth Circuit Court of Appeals pending appeal. The lawsuits were consolidated in the Sixth District, and the court lifted the stay on December 17. The opinion and order from the Sixth Circuit can be found here.

As expected, multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS. Justice Kavanaugh oversees the Sixth Circuit, and we now await his decision as to whether the U.S. Supreme Court will intervene and hear the appeal and, if it does, whether it will stay the law pending resolution.

OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022 if an employer is exercising reasonable, good faith efforts to come into compliance with the standard. See https://www.osha.gov/coronavirus/ets2

Purpose and Rationale for the OSHA ETS

This ETS is intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address “the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.” See 29 CFR 1901.501(a).

Effect on Cal/OSHA ETS Regulations

Cal/OSHA adopted its own Emergency Temporary Standards in November 2020 (Cal/OSHA ETS), and it has since been amended several times, with the most recent proposed amendments released December 16, 2021. The new requirements, if approved by the Office of Administrative Law (which is expected), become effective January 14, 2022 and remain in effect until April 14, 2022. California is required to update its ETS to require vaccines or testing for employees working for large employers and to add other requirements as required by the OSHA ETS.

Given Cal/OSHA’s history of radically changing its proposed amendments prior to implementation, we expect the proposed amendments to be updated and changed to incorporate, at a minimum, the OSHA vaccine and mask mandates. We will update this section when Cal/OSHA’s amendments are finalized and approved by OAL. To review the current proposed Cal/OSHA ETS amendments see https://www.dir.ca.gov/oshsb/documents/Dec162021-COVID-19-Prevention-Emergency-txtcourtesy-2nd-Readoption.pdf

Below we highlight the ways the current Cal/OSHA ETS is more restrictive and less restrictive than OSHA ETS and which mandate large employers must follow. OSHA ETS creates a minimum standard which all states must follow, but individual states can enact more restrictive requirements, and, if they do, employers are required to follow the more restrictive requirements. California has enacted more restrictive standards in some areas, and we highlight those below. To review the current Cal/OSHA ETS see https://www.dir.ca.gov/dosh/coronavirus/ETS.html

All California employers that employ fewer than 100 employees companywide must abide by Cal/OSHA ETS even if they are excluded from OSHA’s ETS. Large employers must implement the mandates in both OSHA ETS and Cal/OSHA ETS.

Employers Covered and Employers Excluded by OSHA ETS

Employers who have at least 100 employees, firm or corporate wide, are required to adhere to the ETS. Employees are counted as of November 5. It’s unclear whether employers who reach the 100-employee threshold sometime after November 5 will be covered and required to comply with the ETS.

Excluded Employers

Healthcare services and federal employees are covered by separate federal vaccine and testing mandates. Federal contractors are covered by Safer Federal Workforce Task Force COVID-19 Workplace Safety and healthcare services covered by the requirements of the Healthcare ETS.

Currently the federal mandates applicable to these groups are stayed pending appeal. It’s possible the U.S. Supreme Court reviews all federal vaccine and testing mandates to resolve the apparent discrepancy in the legality of each.

Counting Specific Groups of Employees

The general rule in situations where multi employers may be working on the same site is that each employer counts its own employees to determine application of the ETS. Examples of its application include:

• Counting employees at multi-employer sites (like a construction site): Each employer counts their own employees, and the total number of combined employees on site is irrelevant.
• Counting employees from staffing agencies: The staffing agency would count the employee for purposes of the 100-employee threshold. The host employer counts its own employees.
• Counting seasonal or temporary workers: When employed directly by the employer, these employees are counted in determining the 100-employee threshold, provided they’re employed at any point while ETS is in effect.

Excluded employees

Employers need not apply OSHA ETS mandates to the following groups, although they should be counted as part of the 100-employee threshold:

• Employees who don’t report to a workplace where other individuals are present
• Employees while working from home
• Employees who work exclusively outdoors
  • Determining employees who work exclusively outdoors:
    • They are counted towards the 100-threshold but not covered by the ETS requirements;
    • The employee must work outdoors on all days;
    • The employee can’t routinely occupy vehicles with other employees as part of the work duties (i.e., don’t travel to worksites in a company vehicle);
    • The employee works outdoors for the duration of the workday except for minimal use of indoor spaces, like an indoor bathroom with multi-stall bathrooms;
    • Construction sites with portions of buildings constructed are not considered outside.

Effective Dates

When originally enacted, the ETS was effective November 5 with all requirements, other than testing for employees who have not completed their entire primary vaccination dose(s), completed by December 5, and, by January 4, 2022, the testing obligation for employees who are not fully vaccinated was to be fully implemented. The ETS was originally set to expire on May 5, 2022, unless extended.

OSHA hasn’t specifically altered any of these dates but has announced that it will not issue citations for noncompliance before January 10, 2022 and won’t issue citations for noncompliance of the testing requirements before February 9, 2022, if the employer is exercising reasonable, good faith efforts to come into compliance with the standard. See https://www.osha.gov/coronavirus/ets2

We recommend all employers plan to have a fully functional plan, including testing programs, in place as soon as possible and to document all efforts made to come into compliance.

Requirements of the OSHA ETS

There are nine (9) major requirements of the new OSHA ETS. The ETS requirements are listed below and expanded upon below.

• Employer must have a vaccination policy
• Employer must determine employee vaccination status
• Employer support of vaccination
• COVID-19 testing for employees not fully vaccinated
• Employees must notify employer of a positive COVID-19 test and be removed from workplace
• Face coverings must be worn indoors by employees not fully vaccinated or who have exemptions
• Employer must provide ETS information to employees
• Employer must report COVID-19 fatalities and hospitalization to OSHA
• Employer must make records available

Employer Policy on Vaccination

The ETS requires employers to implement a vaccination policy for all their employees or require unvaccinated employees to test at least weekly. Employers may mandate all employees be vaccinated but must allow exemptions for legitimate medical or religious accommodations. In the event the employer grants such exemptions, the employer must test all unvaccinated employees on a weekly basis.

The employer may allow employees to remain unvaccinated but, as with those with exemptions to vaccinations, must require they test at least weekly.

Employers may implement different vaccination policies for different groups of employees. For example, an employer can have a policy that requires employees who serve the public to be vaccinated, and those who work in the corporate offices may elect to be tested weekly.

Employers may terminate employees who refuse to get vaccinated in a workplace with a mandatory vaccination requirement if the employee doesn’t request, or is not entitled to, an exemption for medical or religious reasons. As always, employees are entitled to legal exemptions (medical and religious) from vaccinations but must still test weekly.

Cal/OSHA ETS requires employers have a COVID-19 Prevention Program. Employers can incorporate a vaccination and testing policy as required by OSHA ETS into the COVID-19 Prevention Program and distribute it to all employees. Alternatively, employers may draft separate vaccination and testing policies and distribute them to employees.

Determine Employee Vaccination Status

Employers are required to determine and document each employees’ vaccination status even if the employer has a vaccination mandate in place. It isn’t sufficient to simply ask the employee if they are vaccinated, employers must also retain acceptable proof of vaccination status. The following is considered acceptable proof of vaccination:

• Record of immunization from a health care provider or pharmacy;
• Copy of U.S. COVID-19 Vaccination Record Card;
• Copy of medical records documenting vaccination;
• Immunization records from a public health, state, or triable immunization information system.

The following information must also be included on the vaccination record:

• Employee name
• Type of vaccination
• Dates of administering
• Name of health care provider or clinic site

Employers must also maintain a roster of each employees’ vaccination status. The roster must include whether each employee is fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious exemption, or isn’t fully vaccinated because they haven’t provided proof of vaccination. Rosters and records are considered medical records and must be maintained as confidential similar to other types of medical information.

Employees who have had COVID-19 are not considered fully vaccinated even if they have antibodies and must be vaccinated or treated as unvaccinated employees. Employees who have lost their COVID-19 vaccination record can self-attest if unable to get a duplicate copy. Finally, employers must keep copies of the vaccination card. A photocopy, a photograph, or pdf are all acceptable if it is clear. It’s not sufficient for an employee to merely show his/her vaccination card.

Booster shots and additional doses are not included in the definition of fully vaccinated. Employers aren’t required to obtain vaccine related information beyond determining full vaccination. Given the rise in covid variants that cause breakthrough infections, OSHA may amend the definition of fully vaccinated to include booster shots. We will update the section should such an amendment be made.

Cal/OSHA ETS requires employers inquire and maintain records regarding the vaccination status of their employees. OSHA ETS goes a step further and requires the employer collect documentation of vaccination. California employers must now request vaccination records, in the manner required by the OSHA ETS, from all employees. This must be completed by January 4 with citations to be issued beginning January 10, 2022.

Employer Support for Vaccinations – Paid Time Off

Employers must provide employees reasonable time, up to 4 hours of paid time, to receive each dose. Employers cannot require employees use personal time or sick leave for this purpose. This means that employers must provide up to 4 hours of pay for employees to be vaccinated. If employees are vaccinated during non-work hours, payment is not required.

In addition, employers must provide employees reasonable paid time off to recover from side effects experienced from each dose. Paid time off can reasonably be capped at 2 days per dose for employees recovering from side effects of the vaccine.

Employers can require employees use accrued sick leave for purposes of recovery but cannot require the use of vacation. If employees don’t have available accrued sick leave, employers will have to foot the cost of recovery time. Employers who have PTO policies cannot require employees use them for the purpose of recovery because they incorporate both sick and vacation time.

California Healthy Workplace, Healthy Families Act is sick time mandated by California law. See https://www.dir.ca.gov/DLSE/Publications/Paid_Sick_Days_Poster_Template_(11_2014).pdf. Employers cannot require that employees use this type of sick leave; it is always the employee’s choice whether to use it. Therefore, when California employers mandate use of sick leave, they must exclude sick leave available under the California Healthy Workplace, Healthy Families Act from the mandate.

Cal/OSHA doesn’t mandate that employers pay employees for the time to get vaccinated unless the employer has a vaccine mandate. However, because OSHA ETS does require employees be paid for the time to receive the vaccine, California employers must be prepared to pay for that the time. Moreover, employers cannot offset the time with an employee’s accrued paid leave. It’s important to note, California employers may be required to pay for the actual time spent getting vaccinated and recovering as opposed to capping the paid time at that which OSHA ETS opines is reasonable. Again, the January amendments to Cal/OSHA ETS will hopefully clarify this potential requirement. For now, it may be prudent to pay for the actual spent getting vaccinated and recovering pending clarification.

In addition, Cal/OSHA ETS, nor any other California statute currently in effect, require employers pay for the time to recover from the side effects of vaccines. Again, with the passage of OSHA ETS, payment of up to 2 days is required. Here though, employers have some ability to offset the time with accrued but unused sick leave. California employers cannot mandate the use of sick leave accrued pursuant to the Healthy Workplace, Healthy Families Act.

Since the Sixth Circuit lifted the stay, OSHA hasn’t issued guidance on when the paid leave requirement becomes effective. When the mandate was originally issued, leave taken after December 5 was eligible for payment. Absent specific guidance, employers should consider paying employees for any leave taken to be vaccinated or to recover from side effects on or after December 5.

COVID-19 Testing for Employees Who Aren’t Fully Vaccinated

Employers must ensure employees who aren’t fully vaccinated are tested at least weekly and employers aren’t required to pay for the cost of the test. Employees who fail to provide weekly test results must be excluded from the workplace and can be excluded without pay. The ETS has no requirement that employees be paid for the time spent testing.

Employees away from the workplace for a week or more must be tested within 7 days of return. Again, there’s no requirement that employers pay for any costs associated with the test.

Importantly, employers must maintain copies of the results of COVID-19 tests and, therefore, must require employees to provide testing results.

OSHA ETS approved tests must test for SARS-CoV-2 and:

• Be approved or authorized, including Emergency Use Authorization, by the FDA to detect current infection with the SARS-CoV-2 virus (virus test);
• Administered in accordance with authorized instructions;
• Not be both self-administered and self-read unless observed by the employer or authorized telehealth proctor.
  • Home tests and antigen tests would be acceptable if taken at work and read by the employer
  • Antibody tests are not sufficient

OSHA ETS doesn’t require that employers test employees onsite but they may elect to do so. Onsite testing presents a number of challenges including maintaining privacy and confidentiality, proper training of those who are administering and reading the tests and insuring all are using proper PPE to avoid infection.

OSHA ETS reminds employers that employees who have tested positive for COVID-19 should not be tested for 90 days following the positive test and that they can return to work after the isolation period but must wear a face covering.

Prior to OSHA ETS, California employers weren’t required to keep copies of test results. Now employers must not only keep copies of the weekly tests taken by unvaccinated employees but may have to pay for those tests. Cal/OSHA ETS requires employers pay for testing of certain employees under certain circumstances. Unlike OSHA ETS, it hasn’t required weekly testing except in outbreaks and major outbreaks, and, in these situations, employers must pay for tests and the time it takes an employee to be tested. We anticipate Cal/ OSHA will provide clearer guidance on this requirement next month when it approves and adopts amendments to its ETS. For now, employers could elect not to pay for the testing and reimburse employees for the cost if and when Cal/OSHA clarifies the payment requirement.

Testing must be in place as soon as possible but OSHA has stated it won’t issue citations until February 9, 2022 for failure to comply.

Employee Notification to the Employer of a Positive COVID-19 Test and Removal

Employer policies must include a provision requiring:

• Employees promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
• Immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19;
• Keep employees removed until they meet the criteria for returning to work.

OSHA ETS establishes criteria for vaccinated employees to return to work following a positive COVID-19 test:

• Employee receives a negative result on COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; or
• Employee meets the return-to-work criteria in CDC’s “Isolation Guidance”; or
• Receives a recommendation to return to work from a licensed health care provider.

Employers do not need to pay employees removed from the workplace.

An unvaccinated employee need not be removed if they’ve been in close contact with a COVID-19 positive employee. The unvaccinated close contact must continue to wear face coverings.

If their job allows, removed employees can work remotely. OSHA ETS doesn’t require the employer to perform contact tracing or keep records of a positive COVID-19 diagnosis.

Cal/OSHA ETS requires employers keep track of positive COVID cases and specifies the information that must be maintained. Information that must be recorded includes the employee's name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Employers are reminded to record and keep this information available should Cal/OSHA request it.

The current Cal/OSHA ETS doesn’t require vaccinated, asymptomatic close contacts be removed from the workplace but does require the exclusion of unvaccinated close contacts as follows:

1. Persons who had a close contact but never developed any COVID-19 symptoms may return to work when 10 days have passed since the last known close contact.
2. Persons who had a close contact and developed any COVID-19 symptoms cannot return to work until the requirements of subsection (c)(10)(A) [requirements for positive symptomatic cases- which is consistent with the CDC guidance] have been met, unless all the following are true:
   • The person tested negative for COVID-19 using a polymerase chain reaction (PCR) COVID-19 test with specimen taken after the onset of symptoms; and
   • At least 10 days have passed since the last known close contact; and
   • The person has been symptom-free for at least 24 hours without using fever-reducing medications. See https://www.dir.ca.gov/title8/3205.html

It is anticipated that the amendments and readoption of the Cal/OSHA ETS that will become effective on January 14, 2022, will more closely reflect the OSHA ETS standard but, for now, employers should apply the Cal/OSHA ETS standard to unvaccinated close contacts.

In situations where the close contact exposure is work related, Cal/OSHA ETS requires the employer to pay the wages and benefits of those excluded from the workplace and unable to work remotely. If a positive COVID case is determined to be work related, the positive employee is entitled to apply for workers compensation benefits.

Face Coverings

Employers must require employees who aren’t fully vaccinated to wear a face covering when

• Indoors; or
• When occupying a vehicle with another person for work purposes.

Face coverings aren’t required:

• When an employee is alone in a room
• For a limited time while an employee is eating or drinking or for identification purposes in compliance with safety and security requirements
• When an employee is wearing a respirator or facemask
• When the employer can show a face covering is infeasible or creates a greater hazard that would excuse compliance (for example, a need to see employee’s mouth when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a serious risk of injury or death)

In addition, employers must allow all employees to wear a face covering if they choose regardless of vaccination status, unless it creates a serious workplace hazard.

Cal/OSHA requires employers to pay for, and provide, face coverings and N95 masks when requested by employees.

The recent California Department of Public Health (CDPH) mandate requires masks be worn indoors by all individuals in public settings regardless of vaccination status. The requirement is effective from December 15 to January 15. The mandate doesn’t define “public setting” but a conservative reading of the requirement would suggest “public setting” includes any workplaces open to the public, including offices. If workplaces see customers, clients, or vendors at the place of business the facility will likely be considered a “public setting” for purposes of the CDPH mandate. See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx

Information Provided to Employees

OSHA ETS requires that employers provide certain information to employees. The guidance requires the following information be provided to employees in a language and at a literacy level the employee understands:

• Information about the requirements of OSHA ETS and workplace policies and procedures established to implement OSHA ETS;
• The CDC document titled Key Things to Know About COVID-19 Vaccines. The document can be obtained here.
• Information about protections from retaliation or discrimination;
• Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. See OSHA summary

There is no specific guidance as to how this information must be delivered (regular mail, email, in person, etc.) or how often this information must be provided to employees, but the language suggests it need only be provided once unless conditions, policies, or requirements change, in which case the information should be re-sent to employees.

Cal/OSHA requires similar information be provided to employees. It is recommended that once employers update their COVID-19 Prevention Program with the required OSHA ETS policies and disclosures, it be distributed to all employees.

Reporting COVID-19 Fatalities and Hospitalizations to OSHA

OSHA ETS requires employers report certain serious COVID cases to OSHA. Reporting requirements are:

• Employers must report work related COVID-19 fatalities to OSHA within 8 hours of learning about them;
• Employers must report work related COVID-19 hospitalizations within 24 hours of learning about the hospitalization.

OSHA ETS provides guidance for determining whether a COVID-19 fatality or hospitalization is work related and instructs employers to weigh the following factors in making the analysis:

• Consider the type, extent, and duration of contact the employee had at the work environment with other people, particularly the general public;
• Was physical distancing and other controls in place;
• Extent and duration of the time spent in a shared indoor space with limited ventilation; and
• Whether employee had work related contact with anyone who exhibited symptoms of COVID-19.

Cal/OSHA also requires employers record and report certain COVID illnesses to Cal/OSHA.

As indicated above, Cal/OSHA requires the recording of positive COVID cases and requires the employer to record the employee's name, contact information, occupation, location where the employee was working, the date of the employee’s last day at the workplace, and the date of the positive COVID-19 test.

Cal/OSHA also requires employers report any serious illness, serious injury, or death that occurs at work or in connection with work within 8 hours of when the employer knew or should have known of it.

Serious illness includes any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization other than medical observation or diagnostic testing.

For Cal/OSHA reporting purposes, if the employee becomes sick at work, it doesn’t matter if the illness is work related. Reportable illnesses aren’t limited to instances when the employee becomes ill at work. Serious illness includes illnesses contracted in connection with any employment, which can include those contracted in connection with work but with symptoms that begin outside of work. Employers must report a serious illness if there is cause to believe the illness may be work related regardless of whether the symptoms occurred at work. For COVID-19, evidence suggesting transmission at or during work would make a serious illness reportable. Factors to consider when determining whether the illness was contracted in connection with work include:

• Multiple cases in the workplace;
• The type, extent, and duration of contact employee had at the work environment with other people, particularly the general public;
• Physical distancing and other controls that may be in place;
• Whether the employee had work related contact with anyone who exhibited signs and symptoms of COVID-19.

Pursuant to Cal/OSHA, an employer may need to report a COVID-19 case if it occurred in connection to any employment and resulted in death or inpatient hospitalization even if it hasn’t yet been diagnosed.

Reporting a serious illness is not an admission of responsibility or even an admission it was work related.

Employers Must Make Records Available Upon Request

Employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent from the employee.

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