January 27, 2023

Volume XIII, Number 27


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OSHA Emergency Temporary Standard: It’s Out!

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) that concerns vaccine mandates and large private employers early Thursday, November 4th. Covered employers must comply with the ETS by December 5, 2021. The ETS allows covered employees to complete their respective vaccination regimen by January 4, 2022 (and therefore the testing requirements will not be required until then).

Below are a few important takeaways (we will have a more comprehensive discussion about the below and recommendations for best practices published in the coming days):

  • Covered Employers: 100 or more employees. To determine if the employer meets the threshold, employers must consider: (1) all U.S. locations, (2) includes all part-time employees, but not independent contractors; (3) all locations of corporate entity with multiple locations; (4) franchises treated separately; (5) integrated companies that handle safety matters as one company are considered a single employer; (6) temps/staffed employees not counted; and (7) multi-employer sites such as construction sites – each employer counts only its own employees.

    • The ETS does not apply to federal contractors and healthcare covered entities which are subject to their own mandates. With respect to the latter group, the Centers for Medicare & Medicaid Services (“CMS”) provided a release regarding its Rule – also this morning – with its requirements, and included a link to an FAQ.  Healthcare providers should know that the Rule does take effective tomorrow.

  • Covered Employees: The ETS covers approximately all employees except those employees who work remotely from their homes, exclusively by themselves, or exclusively outdoors. The exclusions might, for instance, include landscapers, but if they ride in vehicles with others, then the employee is covered.

  • Mandatory Vaccination Policy or Weekly Testing & Face Coverings: Covered employers must implement a mandatory vaccination policy or require employees to wear face coverings and submit to weekly testing in lieu of vaccination.

    • If an employee is not fully vaccinated, they cannot work in the workplace unless tested at least once every seven days and provide results no less than the seventh day following the date the employee last provided a test result. These tests cannot be self-administered or self-read unless observed by the employer. The ETS does not require the employer to pay costs for testing, if the employee chooses not to get vaccinated, except if the employer is obligated under other federal/state laws or a collective bargaining agreement (or if the reason for not getting the vaccination is due to an accommodation for a disability or sincerely held religious belief).

    • “Fully vaccinated” means two weeks after an employee has completed their final injection of a vaccination.

  • Proof: Covered employers must require vaccinated employees to provide proof of vaccination status either by vaccine card, medical paperwork or an attestation. An attestation is sufficient IF the employee also attests that they lost the medical paperwork and cannot provide it (under an acknowledgement that they are subject to criminal penalties for lying). A covered employer must maintain these records as they would other confidential medical documents.

    • The proof of vaccination may be provided in a digital format such as a digital photograph, PDF or scanned image. The proof of vaccination may not be submitted verbally.

  • Employee Roster: Covered employers must maintain an employee roster that lists employees and whether they are fully vaccinated, partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of vaccination status (the roster must be provided to OSHA upon request).

  • Paid Time Off: Covered employers must provide “reasonable time” (including up to 4 hours of paid time off) for employees to get vaccinated. Covered employers must also provide “reasonable time” (including paid sick leave) for employees to recover from any side effects associated with the vaccination.

  • OSHA Reporting: Work-related fatalities and hospitalizations must be reported to OSHA (if more likely than not caused or contributed to the workplace) within certain timeframes (8 hours for fatalities; 24 hours for hospitalizations). This requirement is consistent with OSHA’s present reporting guidance on COVID-19-related incidents and fatalities.

  • Preemption: The ETS preempts state and local laws that are inconsistent with or conflict with the ETS guidance.

© 2023 Foley & Lardner LLPNational Law Review, Volume XI, Number 308

About this Author

Jeffery Kopp, Labor Attorney, Foley and Lardner Law Firm

Jeffrey S. Kopp is a partner and litigation attorney with Foley & Lardner LLP. He has represented and counseled clients in various labor and employment, FMLA, OFCCP and EEO compliance, unemployment, workers compensation leave, and non-compete and trade secret matters. Mr. Kopp is a member of the firm’s Labor & Employment Practice, the Automotive Industry Team and the Trade Secret/Non-Compete Task Force. Mr. Kopp also represents employers in matters involving federal and state occupational safety and health agencies, including matters involving employee fatalities...

Brooke C. Bahlinger Foley Gardere

Brooke C. Bahlinger is an associate and litigation lawyer with Foley Gardere in Dallas.

While she was a student at Louisiana State University, Brooke was a research assistant. She assisted with research in employment and labor law, specifically CLE papers, law review comments, and course book submissions.

Brooke worked as an assistant for a law firm in Baton Rouge, Louisiana, where she researched and analyzed case law and statutes to draft legal memorandums on topics such as employment law, bankruptcy, obligations, and civil procedure.