OSHA Issues COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule

On November 5, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its emergency rule requiring employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis.

The OSHA rule will also require that these employers provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace. The rule covers 84 million employees.

The new rule has eight core requirements that are summarized below.

1. Paid time off (PTO) for time getting vaccinated
2. Paid sick leave for time recovering from vaccination
3. Written vaccination, testing, and face covering policy
4. Soft vaccine mandate (i.e., proof of fully vaccinated status or a weekly negative test to report to work)
5. Face coverings for unvaccinated workers
6. Notice, medical removal and return-to-work for COVID cases
7. Provide info to employees re: ETS and related issues
8. Report all work-related COVID-19 hospitalizations or deaths regardless of time between exposure and outcome

Who Is Covered by the Rule?

Employers with 100 or more employees in most industries are covered by the rule.  The employee count is determined on a company-wide basis, and includes part-time, seasonal, and all other employees hired directly by employer regardless of work location (e.g., home-based, outdoors, etc.). 

It does not, however, include temporary workers from a staffing agency assigned or independent contractors.  In addition, each employer on multi-employer worksites would count only their own employees to determine emergency temporary standard (ETS) coverage.

The employee count is based on the number of employees as of effective date of ETS (i.e., November 5, 2021) or any date thereafter when the employee count increases to 100 (including seasonal hires).  Once 100 employee threshold is met, the employer is covered for the life of the ETS.

Who Is Not Covered by the Rule?

Although included in the employee-count to determine coverage, the substantive requirements of the ETS do NOT apply to:

• workplaces covered by OSHA’s COVID-19 ETS for healthcare (while it remains in effect until mid-December ‘21),
• workplaces covered by vaccine-mandates for federal contractors,
• employees who do not report to a workplace where other individuals are present (co-workers or public),
• employees who work from home, and
• employees who work outdoors.

Working Outdoors Exemption – to qualify for this exemption employee must work outdoors every day (i.e., employee who works indoors some days and outdoors others is not exempt). 

In addition, employee cannot share communal indoor workspaces as part of their work duties (e.g., employees who drive to work together in a company vehicle are not exempt). 

The cumulative time spent indoors, such as using a multi-stall bathroom or admin office, must be “brief” (unfortunately “brief” is not defined in the rule). 

Buildings under construction may be considered outdoor space if substantial portions of the structure such as walls and ceiling elements are not in place.

• Truck Drivers – Upon announcement of the rule, Labor Secretary Marty Walsh said in an interview on MSNBC that “[m]ost truckers are not covered by OSHA’s emergency standard.” 

The applicable exemption applies to work in solitary locations (e.g., a research station where only one person is present at a time), where the “employee is not exposed to any potentially infectious individuals at work.”  

If the driver interacts indoors with others such as at dispatch or during loading/unloading, then such actions would likely trigger application of the ETS.  Any time that a truck driver spends indoors must be brief for the exemption from the rule to apply.

Who Pays for Testing of Unvaccinated Employees?

The ETS explicitly states that it “does not require the employer to pay for any costs associated with testing.”  Employers may have to pay for the weekly testing if required by other laws, regulations, or collective bargaining agreements. 

In addition, the employer would most likely be responsible for testing costs under the Americans with Disabilities Act or Title VII, if testing is provided as an accommodation for medical reasons or sincerely held religious beliefs. 

The ETS does not, however, prohibit employers from paying costs associated with testing if they choose.

Legal Challenge Resulted in Stay of the ETS

On November 6, 2021, just after the rule was issued, the U.S. Court of Appeals for the 5^th Circuit issued a temporary restraining order (TRO) to stay implementation of the ETS. 

The court simply stated without further explanation that: “[b]ecause the petitions give cause to believe there are grave statutory & constitutional issues with the Mandate, [it] is hereby STAYED pending further action by this court.” 

The court has expedited legal proceedings in this matter with DOL’s response to the stay and a permanent injunction due within days and the petitioners reply due the following day.

Additional legal challenges to the rule have been filed in other Circuits (including the D.C. Circuit) by businesses, religious organizations, the Republican National Committee and several states.  Further decisions by U.S. appellate courts are expected, with a possible petition to the U.S. Supreme Court.

The Bases for the Legal Challenges – Some of the arguments put forth to challenge the ETS are summarized below.

• OSHA overstepped its authority by issuing an ETS too late in the pandemic
• Stay is necessary because implementation of ETS will harm covered employers (e.g., labor shortages and resources to implement compliant policies
• ETS authority limited to workplace hazards, but COVID is Society-wide Danger
• OSHA cannot now claim COVID is a grave danger for all larger employers in all industries when OSHA just concluded that only healthcare faced a grave danger
• COVID is not grave danger to all workers–varies by age/health, not by number of co-workers
• ETS not sufficiently “narrowly tailored” because mandate applies regardless of each employee’s personal risk and different working conditions
• ETS authority limited to new hazards from substances or agents determined to be physically harmful–cannot stretch to cover any communicable disease

Time Frame for Compliance

While the courts are sorting the legal challenges to the rule, OSHA has set a compliance deadline of December 5, 2021 for employers to implement the following:

• a written vaccination policy,
• begin providing PTO for employees getting vaccinated,
• begin providing sick leave for employees suffering the ill effects of vaccination,
• removal from workplace of employees with positive COVID-19 tests,
• requiring face coverings for unvaccinated employees, and
• confirming vaccination status of workforce.

In addition, employers are to begin testing unvaccinated workers by January 4, 2022 to verify a weekly negative test to allow them to report to work.

Given the broad application of the ETS, significant activities are expected to develop quickly over the next few weeks.  NASF will continue to work with its industry coalitions and reach out to OSHA officials regarding updates and developments on the ETS.  If you have any questions or would like additional information on the ETS, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com. 

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This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.