OSHA Issues Vaccinate-or-Test Emergency Rule: Vaccinate by January 4 or Test

OSHA’s much anticipated Vax-or-Test emergency temporary standard was put up on the web for “inspection” this morning and will be officially published in the Federal Register tomorrow.  As expected, OSHA has determined that unvaccinated workers are at “grave danger” from exposure to COVID-19, and an Emergency Temporary Standard (ETS) is necessary to protect employees from that danger. Those findings satisfy the requirements of Section 6(c)(1) of the Occupational Safety and Health Act for issuance of an ETS.

As announced by President Biden on September 9, the ETS only applies to employers with 100 or more employees and will require employers to have a policy that will either require employees to be vaccinated by January 4 or require a weekly negative COVID test. Unvaccinated employees will also be required to wear a mask. Other requirements of the standard must be complied with by December 4. OSHA estimates that this standard will save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months

This standard is one of the most important, far-reaching and controversial standards ever issued by OSHA.  Workplaces have played a central role in driving the pandemic  and requiring 84 million employees to be vaccinated or tested will be a major contribution to bringing the COVID-19 pandemic to an end in this country. Nevertheless, there are significant flaws in this standard, some of which I have written about before or detailed below.  The standard exempts small employers for the first time in the history of OSHA health or safety standards and puts the burden of prevention largely on employees by requiring unvaccinated employees to pay for the tests and masks. The standard also fails to require the employer to implement other effective mitigation measures — many recommended by CDC — such as improved ventilation, physical distancing and masking, especially in areas where there area still high levels of transmission and infection.

The Centers for Medicare and Medicaid services also issued their vaccination regulation today. It requires 17 million workers at approximately 76,000 health care facilities, including hospitals and long-term care facilities that receive Medicare or Medicaid funds, to be vaccinated.

Issuance of this standard will launch a huge political battle between the federal government hose Republican governors and politicians who are vigorously opposing vaccine mandates, the employer’s authority to require vaccination, face coverings, or testing. The Governor of South Carolina, for example, vowed to fight these requirements “to the gates of hell,” (by which he may have meant the Supreme Court). South Carolina, interestingly, is an OSHA state plan state and OSHA already threatened revocation of the state OSHA Plan if the state did not adopt the June health care worker ETS. Also, being a state plan state, South Carolina is also required to cover its public employees, which means that Governor’s Cabinet Agencies will all fall under the requirements of this standard.

There has also been opposition in the US Congress. At a House Education and Labor Committee hearing last week, Congressman Madison Cawthorne (R-NC) viciously attacked a witness whose company was in the process of implementing a vaccine mandate, accusing her of tactics that are “disgusting and un-American.” Meanwhile, three dozen Senate Republicans are planning to introduce a Congressional Review Act resolution to formally disapprove and nullify the standard. (This needs a majority in both Houses and will therefore go nowhere.)

But the standard also has strong support. Congressman Bobby Scott, Chairman of the House Education and Labor Committee applauded the issuance of the standard, stating that “The Biden Administration is demonstrating the leadership that this moment requires. Workplace vaccination policies will save lives, protect our economic recovery, and help us finally get things back to normal.”  Scott was the first legislator to request an COVID-19 Emergency Temporary Standard in January 2020.

The AFL-CIO was moderately supportive, but pointed out many of the standard’s shortcomings:

Vaccines must be coupled with workplace mitigation measures to reduce virus transmission—including improving ventilation, ensuring physical distancing, and providing paid leave when workers are infected and must quarantine. Working people must have a voice in how vaccination and testing policies are implemented. Importantly, the cost of keeping a workplace safe is the employer’s responsibility and should never fall on the worker.

Myths

Let’s first do away with a few myths

Myth: This is a federal vaccine mandate

Fact: This standard is NOT a federal vaccine mandate. It is a workplace safety and health standard designed to ensure a safe workplace either by vaccination or weekly testing. Note, however, that it does allow employers to establish vaccine mandates as an alternative to allowing testing for employees who choose not to be vaccinated.

Myth: This standard will cause widespread resignations and further weaken the American economy

Fact: Most employers who have implemented vaccine mandates have found widespread acceptance and relatively few resignations or suspensions.  In addition, many employees have not gone back to work because they fear that they will be infected in unsafe workplaces and possibly infect their families, especially unvaccinated children. This standard, by making workplaces safer, will encourage many employees to re-enter the workforce.

What’s in the new standard?

The text of the standard and the preamble answer most of the questions we’ve been asking over the past 8 weeks.

1. What are the deadlines for vaccination or testing?

   All of the requirements of the standard, except for vaccinations (or weekly testing), must be complied with within 30 days (December 4). Within 60 days (by January 4), any workers who are not fully vaccinated must be tested on a weekly basis. this puts the final vaccination date after the holidays, as employers requested. Generally, I’d say the sooner the better, but given the normal regulatory process of allowing at least 30 days for compliance requirements to take effect, plus 21 to 30 days for a second vaccine (for Pfizer and Moderna), the timelines are understandable.

2. Are employers required to provide workers with a testing option?

   No. Employers are permitted to impose a vaccination mandate and not have to bother with testing or masking.

3. Does the standard require any other mitigation measures to reduce transmission of COVID-19, such as improved ventilation, physical distancing, outbreak reporting or masks?

   No. This standard focuses exclusively on vaccines and testing (although unvaccinated workers will also be required to wear masks at work.) This is despite CDC guidance that recommends that other mitigation measures be implemented, especially in areas of high transmission and infection.

4. Why did OSHA decide that companies with fewer than 100 employees are not covered?
   

   OSHA standards are required to be feasible. OSHA determined that it did not have enough evidence at this time to show that vaccine or testing requirements were feasible for companies with fewer than 100 employees. But, according to the OSHAct, an ETS is considered to be a proposal for a final standard. OSHA is soliciting information on the feasibility of applying the standard’s requirements to employers with fewer than 100 employees. (In other words, OSHA punted to a date that will likely never arrive.) I have expressed my misgivings about this small business cutoff here.  My misgivings have not been resolved.)

5. Does this standard pre-empt state COVID-19 worker protection laws and regulations?

   This is complicated. The 21 OSHA state plan states (and 5 states with public employee-only plans) must adopt this standard (or a standard at least as effective as this standard) within 30 days.  OSHA has threatened to revoke the state plan programs of three states who refused to adopt the June 2021 health care worker ETS.

   In states without OSHA state plans, OSHA pre-empts any state standards or regulations “relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19.”  This likely means that if a state has requirements that go beyond vaccination, face coverings or testing — such as improved ventilation, physical distancing and outbreak reporting — those requirements would be allowed.

   OSHA would also pre-empt any state laws or regulations that prohibit or limit an employer’s authority to require vaccination, face covering, or testing as required by this standard. This will make for an interesting battle between federal OSHA and those Republican governors who are vigorously opposing vaccine mandates. employer’s authority to require vaccination, face covering, or testing. We have written about the opposition to this standard here.

6. Are franchises covered? 

   Franchises (or franchises within the same company) with 100 or more employees are covered. If someone owns a franchise or a group of franchises that have fewer than 100 employees, those employees are not covered.

7. Are remote and outdoor workers covered by the standard? 

   Employees who work exclusively remotely or exclusively outdoors — and never enter an indoor workplace — would not fall under the requirements of the standard. If they ever enter the workplace or ride in company-owned vehicles, they would be covered by the requirements of the standard. Exclusively outdoor and remote workers are counted as employees when considering the 100 or more threshold for coverage.

8. What about temporary agencies and multi-employer workplaces?

   The 100 employee threshold is counted by employer, not be workplace. A temp agency with 99 employees could send all 99 employees to work with an employer that also employs 99 employees and neither the temp agency nor the host employer would be covered by the standard.  Theoretically, you could have hundreds of employees on a worksite who would not fall under the standard as long as they were all employed by different employers with fewer than 100 employees each. It is unlikely that many employers would make the effort to shift their businesses to a temp-worker model just to escape coverage under the standard, but it’s a theoretical loophole.

9. Does the standard apply to health care workers covered by the Emergency Temporary Standard issued last June?

   No. Health care workers covered by the Emergency Temporary Standard issued last June are considered to not be at grave danger and are therefore not covered by the Vax-or-Test standard issued today. If health care employees work in institutions that receive Medicare or Medicaid funding, they would be covered under the CMS requirements that were also issued today.

10. What kind of weekly testing is acceptable? Can employees use home tests? 

    Any FDA-approved test is acceptable. Testing must be conducted by a certified testing laboratory or under the supervision of the employer. FDA-approved over the counter “home” tests may be used at the worksite or proctored on line.  Home tests cannot be used privately at home by the employee. (Employee vaccination status, accepted by employers who, prior to issuance of the standard, had their own systems for verifying vaccination, will be grandfathered in, even if they don’t meet the specific requirements of the standard.)

11. How will employers verify employees’ vaccination status?

    The standard lays out ways for employers to verify vaccine status, such as vaccination record cards, provider documentation or state health department records. Employees and employers will be warned of the severe penalties for lying to OSHA or presenting false documentation.

12. Will employees or employers pay for weekly testing or required face coverings? 

    There is nothing in the standard that requires employers to pay for testing or face coverings, although they have the option to pay, and may be required to pay by local laws or collective bargaining agreements. OSHA is reportedly working with the Department of Health and Human Services to identify inexpensive ways to have testing done. OSHA’s reasoning is that vaccinations are superior to testing and that not requiring employers to pay for testing creates a financial incentive for those employees to become fully vaccinated and avoid that cost. (I wrote about my objections to not requiring employers to pay for testing here.)

13. Will employees receive time off to get vaccinated and recover from any vaccine side-effects?

    Yes. Employees will receive up to four hours of paid leave to get vaccinated (including travel time), and reasonable time and paid sick leave to recover from side effects

14. Will employees be exempt from the vaccine or testing requirements if they’ve already had a COVID-19 infection?

    No. OSHA is following CDC guidance which has determined that “natural immunity” from previous COVID-19 infection has not been shown to be as effective as the vaccine, and there is no reliable anti-body test at this point that could determine whether someone is immune.

15. Does OSHA provide for religious exemptions or other reasonable accommodations. 

    Yes, OSHA does provide for religious exemptions. The criteria is based on guidance from the Equal Employment Opportunity Commission. There are other “medical necessity” exemptions as well for people who are advised not to be vaccinated, for example if they have severe allergies or are recovering from a COVID-19 infection.

16. Are employers required to report COVID-related deaths and hospitalizations?

    Yes. Employers must report COVID-related deaths to OSHA within 8 hours of learning of the death, and COVID-related hospitalization within 24 hours of learning of the hospitalization. The ETS thus fixes (at least for the duration of this standard) last September’s re-interpretation of OSHA’s Severe Injury Reporting rule that only required reporting of COVID-related hospitalization that occurred within 24 hours of exposure, and deaths within 30 days of exposure. The language in the current standard is welcome because the previous interpretation meant that no COVID-related hospitalizations and few deaths were reported to OSHA.

Key Documents