After waiting with bated breath for nearly two (2) months, employers will finally have access to OSHA’s Emergency Temporary Standard (ETS), which is scheduled for publication in the Federal Register on November 5, 2021.

The content of the ETS was issued on November 4, 2021 and, as expected, many of the technical uncertainties facing employers, have been addressed explicitly by OSHA.

Specifically, the ETS requires employers to:

1. Track the vaccination status (partial, full or unvaccinated) of each employee, obtain acceptable proof of that status, and maintain records and a roster of each employee’s status.
2. Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis from a health provider.
3. Remove COVID-19 infected employees from the workplace, regardless of vaccination status, and bar their return to work until they satisfy specific return-to-work criteria.
4. Ensure that each employee who is not fully vaccinated comply with an alternative regular testing protocol, in which each is tested for COVID-19 at least weekly if the employee is in the workplace at least once a week or within 7 days before returning to work if the employee is away from the workplace for a week or longer.
5. Ensure that each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The deadline imposed for employees to become fully vaccinated under the ETS is January 4, 2022.  The same date would apply to unvaccinated employees who elect to participate in the alternative regular testing protocol.  Covered employers must be in compliance with paid time off and unvaccinated employee masking requirements stated in the ETS by December 5, 2021.

The ETS applies to all private sector employers with 100 or more employees.  According to OSHA, this standard is applied on a company-wide basis, “primarily because administrative capacity is more closely related to employer size…. employer size provides a clear measure that is easy for employers (and OSHA) to track, as opposed to an alternative such as a workplace-based approach.” 

All full-time, part-time, and seasonal employees must be counted toward the threshold.  Independent contractors are not.  In determining their employee headcount, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.

For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise. In other situations, two (2) or more related entities will be regarded as a single employer for purposes of the ETS, if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.

In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed employees for purposes of the 100-employee threshold for coverage.  This is based upon OSHA’s presumption that the staffing agency would be best suited to handle administrative matters for these employees and would be the appropriate entity for managing mandatory vaccination and masking obligations.  For purposes of the 100-employee threshold, only the staffing agency would count the jointly employed employees; meanwhile, the host employer would still be covered if they have 100 or more employees in addition to the employees provided by the staffing agency.

Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce.

According to OSHA, the determination as to whether a particular employer is covered by the standard should be made separately from whether individual employees are covered by the standard’s requirements.   With respect to employees subject to the requirements, the requirements do not apply to the employees: (i) who do not report to a workplace where other individuals such as colleagues or customers are present; (ii) while working from home; or (iii) who work exclusively outdoors.

We recommend that covered employers immediately begin arrangements for the development of a vaccination questionnaire that can be distributed to all employees as well as circulation of a written implementation policy.  The Preti Flaherty employment team will be issuing subsequent alerts in the coming weeks intended to help you meet the applicable compliance deadlines.

Public comments on the ETS, including whether it should become a permanent standard, are due by December 5, 2021.  Once it becomes effective, the ETS becomes the proposal for a permanent standard. The ETS is expected to remain in effect for six months, until May 5, 2022.  If no permanent standard is enacted before May 5, 2022, the ETS will expire.