Which Employers Does the ETS Cover?
Based on the Administration’s Action Plan, the ETS will cover all private businesses with 100 or more employees. OSHA exempts public employees from coverage. In Ohio, public employers must comply with the Ohio Public Employment Risk Reduction Act (PERRP) which is part of the Ohio Bureau of Workers’ Compensation. PERRP typically adopts OSHA regulations.It is not known whether OSHA will count the number of employees at an individual work location or on a company-wide basis to reach the 100+ employee threshold. For traditional workplace safety and health regulations, OSHA typically uses a company-wide approach. However, policy considerations may drive the manner in which employers must count their employees. Due to concern about Covid-19 outbreaks in work locations with large numbers of people in close proximity, OSHA could utilize a location-based calculation. Alternatively, OSHA may adopt a company-wide calculation.
When Will OSHA Publish the ETS, When Will It Take Effect And How Long Will It Last?
The Action Plan did not set a deadline for OSHA to publish the ETS. For comparisons sake, on January 21, 2021, the Administration issued an executive order directing OSHA to develop an ETS to protect healthcare workers from contracting the coronavirus. Nearly six months later, on June 10, 2021, OSHA published its Covid-19 Healthcare ETS. However, the Covid-19 Healthcare ETS was very comprehensive covering many topics, including personal protective equipment, engineering controls to reduce to risk of contracting the coronavirus, employee training and health screening. OSHA’s directive to develop the private employer ETS appears more focused in its application and we expect publication in a shorter time period.The ETS will become effective immediately upon publication in the Federal Register. However, OSHA will likely provide employers with forty-five to ninety days to comply with the temporary standard before OSHA will begin enforcing its provisions. Most vaccines require two-doses. As a result, OSHA will likely delay enforcement to allow for this two-dose regimen.
To enact an ETS, OSHA must demonstrate that workers are in grave danger due to exposure to toxic substances, a physical harm or to a new hazard such that an emergency standard is necessary to protect them. An ETS can remain in place for six months unless it becomes a permanent OSHA standard following a formal rulemaking process and public comment period.
How Much Paid Leave Will Employees Receive To Get Vaccinated And Who Pays For Testing?
The Action Plan states that EFT developed by OSHA will require employers with 100+ employees “to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.” The Action Plan does not state the amount of paid time-off employers must provide.The Action Plan also does not indicate who must pay for the weekly Covid-19 testing (the employer or the employee). The Action Plan states that the ETS will require “any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” Thus, it appears that the burden of production will fall on the employee. The Action Plan also announced that large retailers that sell at-home, rapid Covid-19 tests, such as Walmart, Amazon and Kroger, will sell the test kits at-cost for the next three months. The temporarily reduced test costs may signal that employees will bear the cost of testing. In contrast, OSHA historically requires employers to incur the cost of traditional workplace safety and health measures.
Will Exemptions Exist Under The ETS?
We expect that the ETS will provide for exemptions based on medical conditions or sincerely held religious beliefs. The Action Plan gives no indication that it will provide for other exemptions beyond those required by Title VII and the ADA.What Should Employers Do Now?
Although many of the detailed requirements of the ETS remain unknown, employers should begin considering how to comply with the general vaccination or testing mandate set forth in the Action Plan, including:- 100+ employee threshold: Employers should calculate the number of current workers employed company-wide and at each individual location, including full-time, part-time, temporary, seasonal and remote employees.
- Documenting employee vaccination status: Employers should consider how they will account for employee vaccine status. The EEOC has indicated that employers can request documentation or other confirmation of Covid-19 vaccination status. However, like all medical information, employers must keep that information confidential and store it separately from employee personnel files.
- Tracking Test Results: If vaccination is not a condition of employment, employers will have to create a procedure to track the weekly Covid-19 tests for its unvaccinated employees.
- Responding to requests for medical and religious exemptions: Employers should base medical exemptions on objective medical documentation, keep them confidential, and store that information separately from employee personnel files. Religious exemption requests will prove more difficult to ascertain. Employers generally have no reason to inquire into the religious beliefs of its employees. An employee must base a religious exemption request on a sincerely held religious belief rather than a personal philosophy or objection to vaccination. We recommend legal consultation on religious exemption requests if decision makers are not well versed in this area. Considerations for accommodating these workers include mandatory mask wearing, physical distancing, remote work, etc.
- OSHA inspections: OSHA performs on-site inspections and “phone/fax” investigations. The later occurs when the agency contacts the employer, describes the safety or health complaint and requests documentation of compliance with the standard, problems found and/or corrective actions taken. Although the ETS enforcement guidelines remain unknown, employers should preparation for inspections. Employers should identify the company representative that will take part in any inspection related to the ETS and review injury and illness logs (OSHA 300, 301 and 300A) for accuracy and to ensure completed hazard assessments readily available for review by the investigator.