OSHA ETS Requirements

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WITHDRAWN BY OSHA ON JAN. 26, 2022, NOT IN EFFECT.

Summary of the Law and Procedural Background

On Nov. 5, 2021, the Occupational Safety and Health Administration (OSHA) published its long-awaited Emergency Temporary Standard (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. When using template policies, particularly those based on federal law, it's imperative to review and update them for compliance 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 5th Circuit Court of Appeals, pending appeal. The lawsuits were consolidated in the 6th District, and the court lifted the stay on Dec. 17. The opinion and order from the 6th Circuit is here.

As expected, multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS. Justice Brett Kavanaugh oversees the 6th Circuit, and we await his decision as to whether the 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 Jan. 10, 2022. The agency also stated that it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before Feb. 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 the Cal/OSHA ETS Regulations

Cal/OSHA adopted its own Emergency Temporary Standards in November 2020 (Cal/OSHA ETS), and it has been amended several times since, with the most recent proposed amendments released Dec. 16, 2021. The new requirements, if approved by the Office of Administrative Law (which is expected), become effective Jan. 14, 2022, and remain in effect until April 14, 2022. California must 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 are highlights of where the current Cal/OSHA ETS are more restrictive and less restrictive than the OSHA ETS, and which mandate large employers must follow. The OSHA standard is the minimum standard that all states must follow, but individual states can enact more restrictive requirements, and, if they do, employers must follow the more restrictive requirements. 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 the Cal/OSHA standards even if they are excluded from OSHA’s ETS. Large employers must implement the mandates in both the OSHA ETS and the Cal/OSHA ETS.

Employers Covered and Employers Excluded by the 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 Nov. 5, 2021. It’s unclear whether employers who reach the 100-employee threshold sometime after that date are covered and required to comply with the ETS.

Excluded Employers

Health-care services and federal employees are covered by separate federal vaccine and testing mandates. Federal contractors are covered by Safer Federal Workforce Task Force, and health-care services are covered by the requirements of the health-care ETS.

Currently, the federal mandates applicable to those groups are stayed pending appeal. It’s possible that 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 for situations in which multiple employers might be working on the same site is that each employer counts its own employees to determine application of the ETS. For example:

• Counting employees at multi-employer sites (e.g., a construction site): Each employer counts its own employees. The total number of combined employees on site is irrelevant.
• Counting employees from staffing agencies: The agency counts the employees 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 the ETS is in effect.

Excluded employees

Employers need not apply OSHA ETS mandates to these 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 toward the 100-threshold, but not covered by the ETS requirements.
    • They must work outdoors on all days.
    • They can’t routinely occupy vehicles with other employees as part of the work duties (i.e., the don’t travel to work sites in a company vehicle).
    • They works outdoors for the duration of the workday except for minimal use of indoor spaces, such as an indoor bathroom.

Construction sites with portions of buildings constructed are not considered outside.

Effective Dates

The ETS originally was effective Nov. 5, 2020 with all requirements, other than testing for employees who have not completed their entire primary vaccination dose(s by Dec. 5. By Jan. 4, 2022, the testing obligation for employees who are not fully vaccinated was to be fully implemented. The ETS originally was set to expire on May 5, 2022, unless extended.

OSHA hasn’t specifically altered any of these dates, but announced that it will not issue citations for noncompliance before Jan. 10, 2022, and won’t issue citations for noncompliance of the testing requirements before Feb. 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 that 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 major requirements of the new OSHA ETS.

1. Employers must have a vaccination policy.
2. Employers must determine employee vaccination status.
3. Employers must support vaccination.
4. There must be COVID-19 testing for employees not fully vaccinated.
5. Employees must notify employer of a positive COVID-19 test and be removed from workplace.
6. Face coverings must be worn indoors by employees not fully vaccinated or who have exemptions.
7. Employers must provide ETS information to employees.
8. Employers must report COVID-19 fatalities and hospitalization to OSHA.
9. Employers 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, it must test all unvaccinated employees on a weekly basis.

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

Employers may implement different vaccination policies for different groups of employees. For example, employers may require 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 an employee who refuses to get vaccinated in a workplace with a mandatory vaccination requirement if the worker 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 require employers have a COVID-19 prevention program. Employers can incorporate a vaccination and testing policy as required by OSHA ETS into that 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 also must retain acceptable proof of vaccination status. These are 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.

This information must be included on the vaccination record:

• employee name;
• type of vaccination;
• dates of administering; and
• name of health-care provider or clinic site.

Employers must maintain a roster of each employees’ vaccination status. The roster must clarify 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. It’s not sufficient for an employee to merely show his or 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.

The Cal/OSHA ETS require employers to inquire and maintain records regarding the vaccination status of their employees. Those standards go a step further, and require the employer to collect documentation of vaccination. California employers must request vaccination records, in the manner required by the OSHA ETS, from all employees. That must be completed by Jan. 4, 2021, with citations to be issued beginning January 10, 2022.

Employer Support for Vaccinations –– Paid Time Off

Employers must provide employees reasonable time, up to four hours of paid time, to receive each dose. Employers cannot require employees to use personal time or sick leave for this purpose. So employers must provide up to four hours of pay for employees to be vaccinated. If employees are vaccinated during nonwork 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 two days per dose for employees recovering from side effects of the vaccine.

Employers can require employees to use accrued sick leave for purposes of recovery but cannot require the use of vacation. If employees have no available accrued sick leave, employers must 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.

Per the California Healthy Workplace Healthy Family Act, sick time is 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's always the employee’s choice whether to use it. So when California employers mandate use of sick leave, they must exclude such leave available under the Healthy Workplace Healthy Family Act.

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

In addition, neither the Cal/OSHA ETS, nor any other California statute currently in effect, require employers to pay for the time to recover from the side effects of vaccines. (Per the OSHA ETS, payment of as many as two days is required.) Employers have some ability to offset the time with accrued but unused sick leave, except for Healthy Workplace Healthy Family Act.

Since the 6th Circuit lifted the stay, OSHA hasn’t issued guidance on when the paid leave requirement becomes effective. When the mandate was issued, leave taken after Dec. 5, 2020 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 that date.

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

Employers must ensure that 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 emergency standards have 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 seven days of return. Again, there’s no requirement that employers pay for any costs associated with the test.

Employers must require employees to provide testing results, and must maintain copies of them.

The 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;
• be 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 are acceptable if taken at work and read by the employer.
  • Antibody tests are not sufficient.

The OSHA ETS doesn’t require employers to test employees on-site, but they may elect to do so. On-site testing presents several challenges, including maintaining privacy and confidentiality, proper training of those who are administering and reading the tests, and ensuring that everyone uses proper PPE to avoid infection.

The federal emergency standard states that employers whose 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 the 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 might have to pay for them. The Cal/OSHA emergency standards require employers to pay for testing of certain employees under certain circumstances. Unlike the OSHA standard, the state hasn’t required weekly testing except in outbreaks and major outbreaks, and, in those situations, employers must pay for tests and the time it takes an employee to be tested. We anticipate that 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 Feb. 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 to provide notice promptly when they receive a positive COVID-19 test or are diagnosed with COVID-19;
• immediate removal of any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19;
• employees to stay away from the workplace until they meet the criteria for returning to work.

Per the OSHA ETS, vaccinated employees may return to work following a positive COVID-19 test when they:

• test negative on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if they choose the NAAT test for confirmatory testing; or
• meet the return-to-work criteria in the CDC’s "isolation guidance;" or
• receive 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 she or he has been in close contact with a co-worker who tests positive for COVID-19. The unvaccinated worker must continue to wear face coverings.

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

The Cal/OSHA ETS require employers keep track of positive COVID cases and specifies the information that must be maintained. Information that must be recorded include the employee's name, contact information, occupation, location where she or he 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 emergency standards don't require vaccinated, asymptomatic close contacts to be removed from the workplace, but they do require the exclusion of these unvaccinated close contacts:

1. Persons who had a close contact but never developed 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 COVID-19 symptoms may not 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 of these 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

The anticipated amendments and re-adoption of the Cal/OSHA ETS that will become effective Jan. 14, 2022 probably will more closely reflect the OSHA ETS but for now, employers should apply the Cal/OSHA standards to unvaccinated close contacts.

For situations in which the close contact exposure is work related, the Cal/OSHA ETS require 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 they are 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 face mask;
• when the employer can show that a face covering is infeasible or creates a greater hazard that would excuse compliance (e.g., a need to see employee’s mouth when the work requires it, 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 to provide, face coverings and N95 masks when requested by employees.

The recent California Department of Public Health (CDPH) mandate requires masks to be worn indoors by all individuals in public settings regardless of vaccination status. The requirement is effective from Dec. 15, 2020 to Jan. 15, 2021. The mandate doesn’t define “public setting” but a conservative reading of the requirement would suggest that it includes any workplaces open to the public, including offices. If workplaces include customers, clients, or vendors, the facility probably will 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

The OSHA ETS requires that employers provide certain information to employees in a language and at a literacy level they understand. The information must include:

• requirements of the OSHA ETS and workplace policies and procedures established to implement that standard;
• the CDC document "Key Things to Know About COVID-19 Vaccines" (it is here);
• protections from retaliation or discrimination;
• laws that provide for criminal penalties for knowingly supplying false statements or documentation. See OSHA summary

There's no specific guidance as to how this information must be delivered (regular mail, email, in person, etc.) or how often it 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 to be provided to employees. We recommend 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

The OSHA ETS requires employers to report certain serious COVID cases to OSHA. Employers must report:

• work-related COVID-19 fatalities to OSHA within eight hours of learning about them;
• work related COVID-19 hospitalizations within 24 hours of learning about them.

The OSHA standard also provides guidance for determining whether a COVID-19 fatality or hospitalization is work related, and instructs employers to weigh these factors in making the analysis:

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

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

As explained above, Cal/OSHA requires employers to record positive COVID cases with the employee's name, contact information, occupation, location where he or she 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 to report any serious illness, serious injury, or death that occurs at work or in connection with work within eight 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 it might 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 might 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 might 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 on 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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