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. https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard 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 https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf 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 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 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.