OSHA Issues ETS on Mandated Vaccinations, but Fifth Circuit Court of Appeals Says Wait a Minute

November 12, 2021

By Michael Burns, courtesy of SBAM Approved Partner ASE

Last Thursday OSHA released notice it was publishing its Emergency Temporary Standards (ETS) for employer mandated vaccinations. The ETS covers organizations over 100 in employment size. The effective date of the ETS will be December 5^th, and the date for vaccinations will start 60 days from last Friday or January 4, 2022. Following the ETS vaccination deadline the White House modified its deadline for federal contractors to the same date – 1/4/2022.

However, on Saturday the Fifth Circuit Court of Appeals issued a temporary stay holding that OSHA and the Executive Branch overstepped its authority by requiring employers to enforce mandatory vaccinations on their employees – saying they raise “grave statutory and constitutional issues.”

This court decision was reaffirming in very strong language last week, including a prohibition against OSHA taking any steps toward implementation. Ultimately, this issue will likely land in the Supreme Court for final resolution.

While this is being sorted out in the Courts, covered employers may wish to continue preparations for compliance in case it is necessary. The following provides important information you’ll need to know:

Who should be counted toward the 100-employee level? The count of employees includes all employees of a company regardless of where they work in the U.S. This includes part-time employees too. Independent contractors engaged by an employer do not count. Franchisors would not count the employees of their franchises. Staffing agencies are responsible for their employees working at their client’s sites. At multi-employer worksites (think construction company with many sites) each employer – general contractor and any sub-contractors would count their employees separately.

The ETS states employers must either require vaccinations for all employees that will be at the worksite at any time, or those unvaccinated employees must undergo weekly COVID-19 testing and wear a face mask at work in lieu of vaccination.

But do not forget the reasonable accommodation requirements for covered disabilities or religious reasons, absent undue hardship, still apply.

To meet the January 4^th timeline for full vaccination, employees must have received both doses of the two-shot vaccine or one dose of the single-dose vaccine by January 4,2022. The ETS does not mandate employees that received the 2^nd shot shortly before Jan. 4^th to test during the two-week waiting period to be considered fully vaccinated after the second shot.

Employees that have not been fully vaccinated by January 4^th will need to submit to weekly testing AND continue to wear a mask at work. Because of the ETS December 5^th effective date employers will have to have masking, recordkeeping, and removal of COVID-positive employees practiced as of that date. Employers in Michigan should be practicing masking anyway pursuant to MIOSHA workplace safety requirements.

Do Employers have to pay for an employee’s time off work to get vaccinated? Employers will be required to provide up to four (4) hours paid time off to get the vaccine(s) if vaccination is during normal work hours. This applies to both shots if a two-dose vaccination regimen is being taken. Employers are not supposed to require employees to use their own paid sick leave, vacation time, or other time off benefit already provided to pay for this time off. If more than four hours is needed for vaccination this does not have to be paid, but employers can require the use of other company paid time off benefits to cover that time off. Lastly, employers do not have to pay for time off to vaccinate when outside of the normal work schedule.

Employers must also pay for time off if an employee needs time to recover from the side effects of vaccination. The rules here are a little different. In the case where an employer has separate time off benefits such as separate paid sick, personal time and vacation time off benefits, the employer can require the employee to use paid sick time benefits but can NOT require the ill employee to use accrued/available vacation or personal leave for time off recovery. However in the case of a general paid time off (PTO) bank plan where all time off benefits are grouped together, the employer CAN require the use of those benefits if the employee gets ill from vaccination and takes time off to recover. In addition, if the employee has used all their accrued PTO (paid time off that is earned and available vs. that which would be accrued later) at the time they get ill due to vaccine side effects the employer must provide additional paid time off. This applies when a PTO system uses an accrual method, and the employee has used up their accrued benefits to date. The employer cannot force the “borrowing” of unaccrued benefits under this system to cover the paid time off requirement – tricky.

How often must the employer require testing of unvaccinated employees? If an employee remains unvaccinated after the January 4^th ETS deadline, the employees must be tested for COVID-19 every seven (7) days. The ETS does not require employers to pay for the cost of regular COVID-19 testing nor time off to get tested. Keep in mind though, that if you have a collective bargaining agreement with applicable terms, the agreement will apply to those workers in the bargaining unit.

What else does the ETS require? Importantly, covered employers must develop a written vaccination policy that either requires all employees to be vaccinated or alternatively to enforce a policy requiring the employee elect vaccination or undergo weekly COVID-19 testing AND wear a face covering at the workplace. This policy must:

Provide time off for circumstances outlined above.
Require the employee to give prompt notice of the fact they are positive for COVID-19 or have been diagnosed with COVID-19.
At which point the employer is required to immediately remove the employee from the workplace. The employee must remain out of the workplace until return-to-work criteria are met.
The policy must require face covering if unvaccinated employee is at work or around other workers.
The policy and its requirements must be formally communicated to employees in a language and at a literacy level the employee can understand.
The policy will include reporting illnesses resulting in hospitalization to OSHA or in Michigan MIOSHA, within 24 hours of the learning about the hospitalization.
And lastly, maintain records of vaccinated employees or their attestation as to vaccination. These records must be kept confidential in the employee’s separate medical files.

What if an employee tests positive for COVID? Just as previously required, the employer must have the employee removed from the workplace.

How must an employer determine whether a worker is vaccinated or not? The employer is required to determine vaccination status of each employee and require the employee to provide acceptable proof of vaccination. Acceptable proof is:

Record of immunization from a health care provider or pharmacy
Copy of the COVID-19 Vaccination Record Card
Copy of medical records documenting the vaccination
Copy of immunization records from a public health, state, or tribal immunization system OR
Copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
If no proof is available, the employee may formally attest to having received the vaccination. This attestation is prescribed in the ETS.

This will be a record the employer must maintain only as long as the ETS in effect. The record will not be required to be kept pursuant to normal OSHA medical documentation requirements (Sec 1910.2020 (d) (1) (i)) which is 30 years past end of employment.

This will be a record the employer must maintain as long as the ETS in effect. The record will not be required to be kept pursuant to normal health documentation requirements (Sec 1910.2020 (d) (1) (i).

The employer can request and require documentation from the employee on their vaccination status. Employers can require an employee provide test results for the weekly COVID testing. Be sure to maintain confidentiality of testing results.

This article was edited by SBAM President Brian Calley on November 15, 2021 and will continue to be updated as new information rolls-out.