This post is older than 1 year and may reflect outdated information.
Alert from AAA Public Affairs Government Relations
Nov. 5, 2021
Today, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS) requiring businesses with more than 100 employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. If an employer decides not to implement a mandatory vaccination policy they are instead required to establish, implement, and enforce a policy allowing employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering at the workplace. The ETS takes effect immediately upon publication in the Federal Register on November 5, 2021, but it is subject to revision following the conclusion of a short comment period.
The ETS currently provides for the following:
The ETS applies to all employers that have a total of at least 100 employees firm or corporate-wide, at any time the ETS is in effect.
In determining if the employer meets the 100-employee threshold for coverage under the ETS, OSHA states, “employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not.”
According to OSHA, while employees who work offsite or outdoors count towards the 100-employee threshold, these employees would not be subject to the vaccination requirements. Specifically, OSHA states in the their summary that the “ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.”
OSHA further clarifies that in order to qualify as work performed exclusively outdoors, the following criteria must be met:
The employee must work outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS).
The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle).
The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).
The employee’s work must truly occur “outdoors,” which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.
Collection of official documentation
The ETS requires employers to determine the vaccination status of each employee.
Obtain acceptable proof of vaccination.
Maintain records/roster of each employee’s vaccination status.
The ETS also requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results for that employee, and to similarly make that information available to anyone having written authorized consent of that employee.
Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
An employee who switches back and forth from teleworking to working in a setting where other people are present (e.g., an office) is covered by this ETS and must be vaccinated if required by the employer.
If the employer does not require vaccination, the teleworking employee must either be vaccinated or complete testing and wear a face covering. How often such an employee must be tested for COVID-19 and wear a face covering, however, depends on how often they report to the office.
Paid Time Off
The ETS requires employers to provide paid time off for workers to be vaccinated, including reasonable time and paid sick leave to recover from side effects experienced following each vaccine dose.
The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
The ETS does not require employers to pay for any costs associated with testing.
If an employee tests positive for COVID-19, the ETS requires employers to
(1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
(2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider;
(3) keep removed employees out of the workplace until they meet criteria for returning to work.
Face mask requirements
The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
To meet the definition of “mandatory vaccination policy” as used in the ETS, the employer’s policy must require: vaccination of all employees, including all new employees as soon as practicable, other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.
To comply with the ETS, employers must ensure vaccination requirements are addressed in the workplace by the following dates:
December 5, 2021: All requirements of the ETS other than testing for employees who have not completed their entire primary vaccination dose(s).
January 4, 2022: Testing for employees who are not fully vaccinated.
Information the employer must provide employees
(1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
(2) the CDC document “Key Things to Know About COVID-19 Vaccines”;
(3) information about protections against retaliation and discrimination; and
(4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Some states differ under the law
OSHA covers most private sector employers and workers in all 50 states, the District of Columbia, and the other United States (U.S.) jurisdictions – either directly through OSHA or through an OSHA-approved State Plan.
State Plans are OSHA-approved job safety and health programs operated by individual states rather than federal OSHA.
There are currently 22 State Plans covering both private sector and state and local government workers. There are six State Plans covering only state and local government workers. A full list of states operating under State Plans can be found here: https://www.osha.gov/stateplans/.
State Plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.
According to OSHA, when the agency promulgates an ETS, State Plans must either amend their standards to be identical or “at least as effective as” the new standard, or show that an existing State Plan standard covering this area is “at least as effective” as the new Federal standard.
An ETS is valid until superseded by a permanent standard, which OSHA must promulgate within six months of publishing the ETS in the Federal Register.
Anticipated legal challenges
Many states, industry associations, religious organizations, and companies have already stated that they will challenge the OSHA ETS in court and try to block its implementation. It is unclear at this time, whether any of these legal challenges will be successful in blocking the ETS, but according to the Congressional Research Service, courts have invalidated or halted four of OSHA’s ETS rules and partially blocked one. These court rulings occurred prior to 1984.
Please keep in the mind there is a brief comment period related to the ETS. Following the close of the comment period, the ETS may be revised prior to the final version being published. AAA Public Affairs staff will continue to monitor this issue and provide additional updates to clubs, as necessary. Clubs are advised to consult with their legal counsel and human resources department regarding review and implementation of OSHA’s ETS.