Federal Vaccination and Testing Mandate Issued, Setting January 5 Compliance Deadline
November 4, 2021
By: Thomas M. Cunningham
The Federal Occupational Safety and Health Administration (OSHA) has issued its long-promised Emergency Temporary Standard (ETS) mandating certain covered employers require their employees to be vaccinated against COVID-19 or otherwise be tested weekly and wear facemasks in certain circumstances. The ETS is anticipated to be effective on November 5, 2021, once published in the Federal Register. The ETS contains a compliance deadline of December 5, 2021 for all aspects, except testing requirements, and the compliance deadline for testing is January 5, 2022. Iowa Governor Kim Reynolds immediately issued a statement promising that the State of Iowa would take immediate legal action to challenge the mandate.
OSHA has provided a resource page on its web site that includes an extensive Q & A, Worker’s Rights fact sheet, sample polices, and information required to be distributed to employees. A link to that page is here.
The highlights of the ETS requirements, which will be enforced by OSHA through its inspection and citation power, are summarized below.
Which employers are covered by the ETS?
Private employers with 100 or more employees company-wide (not by location) are covered. In states with OSHA-approved State Plans (like Iowa), all state and local government employers, regardless of employee count, are also covered. If an employer does not have 100 or more employees as of the effective date of the ETS, but later increases its employee census to 100 or more, it will become covered as of the date of the increased census. Plus, once an employer is covered by the ETS, it remains covered, regardless of subsequent increasing or decreasing census numbers.
Are any employers not covered by the ETS?
Yes. In addition to private employers with fewer than 100 employees, employers who are federal contractors and subcontractors and covered by the guidance pertaining to them, or who are employers covered by the ETS pertaining to healthcare services and healthcare support services, are not covered by this ETS.
What does the ETS require?
- Covered employers must develop, implement and enforce a written mandatory COVID-19 vaccination policy requiring all employees to be fully vaccinated against COVID-19, other than employees: for whom the vaccine is contraindicated; for whom medical necessity requires a delay in vaccination; or who are entitled under federal law to a reasonable accommodation because of a disability or a sincerely held religious belief.
- The ETS provides an exemption from the mandatory vaccination policy above only for covered employers that establish, implement, and enforce a written policy allowing employees to choose to be either (a) fully vaccinated against COVID-19 or (b) provide proof of regular (every 7 days) testing for COVID-19 and wear a facemask in the workplace indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
- Regardless of which policy above is selected, covered employers are required to determine the vaccination status of each employee. Employees are required to provide acceptable proof of vaccination, and employers must maintain records of each employee’s vaccination status, as well as a roster of each employee’s vaccination status. The ETS provides detailed requirements as to what constitutes acceptable proof of vaccination and the information that must be gathered, recorded, and preserved in the employer’s records and roster.
- A covered employer must remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test result or is diagnosed with COVID-19 until certain return-to-work criteria are satisfied.
- The ETS also imposes on covered employers an obligation to distribute various types of information concerning the ETS to employees, including a statement of the employees’ rights. The ETS amends OSHA’s reporting and record-keeping requirements regarding work-related COVID-19 fatalities and in-patient hospitalizations. The ETS also imposes a requirement of making records available to employees under certain circumstances.
What happens to employees who are not or cannot be fully vaccinated?
Regardless of which policy the employer elects, any employee who is not fully vaccinated must provide proof of a negative COVID-19 test result every seven days the employee is in the workplace and wear a face mask when the employee is in the workplace except under certain limited circumstances. If the employee fails or refuses to provide such proof, the employer must keep the employee removed from the workplace until the employee provides proof of a negative result.
Are any employees not required to follow the requirements of the ETS even if they are employed by an employer covered by the ETS?
Yes. Employees who are working from home or who otherwise do not report to a workplace where other employees are present do not have to comply with the requirements. However, employees who are not fully vaccinated and occasionally report to a workplace with others are required to provide proof of a negative test at least seven days before reporting to the workplace and to wear a face mask where required under the ETS when in the workplace. In addition, employees who work exclusively outdoors, as defined in the ETS, do not need to follow the provisions of the ETS.
Who pays for the testing?
The ETS does not require the employer to pay for such testing, unless otherwise required under state law or the term of a collective bargaining agreement. In Iowa, no law requires an employer to pay for testing. Employers are required to reimburse employees for authorized expenses, so if the employer does not state it will pay for the testing, the expense must be born by the employee. However, under the Fair Labor Standards Act (FLSA), the employer may be required in certain circumstances to pay for the time it takes an employee to be tested, such as testing conducted in the middle of the employee's work time.
Who pays for the vaccination?
Unless provided or reimbursed by the employer, the employee pays for the vaccination. The ETS requires a covered employer to provide employees a reasonable amount of paid time, not to exceed four hours, for each of the employee’s primary vaccination doses. An employer may not require this time be offset with any accrued unused vacation, sick or PTO time the employee has available. The ETS requires employers to provide reasonable paid sick leave to employees if necessary to recover from the side effects experienced following any primary dose.
How will this ETS be enforced?
OSHA plans to have “programed or planned” inspections (e.g., random inspections and/or targeting specific industries), where inspectors go into workplaces to check that the workplace is following the ETS. OSHA will likely be issuing Citations classified as “willful” violations, for which a company can be fined up to $136,532 for a single violation.
How does this ETS relate to recently-enacted Iowa statutes concerning some of the same subject areas?
Federal OSHA has taken the position that the ETS is intended to and does wholly preempt any contrary state laws pertaining to vaccine mandates, proof of vaccination status, mask mandates, and COVID-19 testing in the workplace. Iowa's most recent legislative enactment in this area occurred on October 29. As noted earlier, the Governor has indicated the State’s intent to commence litigation to invalidate the ETS or block its enforcement. Iowa is one of 22 states that has a State OSHA Plan covering both private employers and state and local governments (another 6 have plans covering only state and local government employers). Iowa is required to notify Federal OSHA of its intent to adopt the ETS within 15 days and to officially adopt it within 30 days. Failure or refusal to do so may result in actions by Federal OSHA to secure compliance or ultimately could result in a complete decertification and federal takeover of Iowa’s OSHA State Plan.
The ETS is on a collision course in some areas with Iowa law. A brief summary of those areas is provided here. Whether federal or state law will prevail will not be known until after the issues have been addressed in Court.
Nyemaster Goode’s Labor and Employment Department is ready to assist employers in navigating the dynamic legal intricacies and meeting the conflicting obligations facing them.