As summarized in Goodwin’s previous client alert, the Occupational Safety and Health Administration (“OSHA”) published an “emergency temporary standard” that, among other things, mandates that employers with 100 or more U.S. employees adopt written vaccination policies, collect and maintain data about vaccination status, and implement workplace rules, including requiring employees who are not fully vaccinated undergo weekly testing for COVID-19 and wear a face covering in the workplace as well as in vehicles when traveling with another employee on company business (the “OSHA Standard”). The OSHA Standard requires an employer to first determine whether it is a covered employer, and if so, to comply with most aspects of the OSHA Standard by December 5, 2021.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay of the OSHA Standard, which temporarily prevents the OSHA Standard from going into effect. The stay may (or may not) be lifted in a matter of weeks. Given the fast-approaching compliance date and the possibility that the stay will not remain in place, employers should take steps now to prepare to comply with the OSHA Standard.
Goodwin’s previous client alert summarized the key provisions of the OSHA Standard. This client alert addresses the questions that many have asked about the status of the legal challenges to the OSHA Standard and about other aspects of the mandate, including the steps that employers need to take to comply if the OSHA Standard remains effective.
The Effect of the Fifth Circuit Temporary Stay
Quickly after the OSHA Standard was published, several lawsuits were filed in different federal circuit courts challenging the constitutionality and legality of the OSHA Standard, including whether a “grave danger” to workers existed at the time the OSHA Standard was issued such that the emergency status was necessary. The Fifth Circuit was the first to rule, issuing a stay “pending further litigation.” Although the government will request that the stay be dissolved, there is a reasonable chance that the Fifth Circuit will keep the stay in place pending appeal.
In circumstances where multiple lawsuits are filed in different circuit courts, the Judicial Panel on Multidistrict Litigation (“MDL Panel”) oversees a lottery process through which the cases will be consolidated and heard by one circuit court from the circuits in which challenges have been filed. Once a circuit is assigned, that court could dissolve the stay granted by the Fifth Circuit (and any stays that may be granted by other circuits in the coming days). OSHA can request an MDL Panel as early as November 16, 2021 (ten days after the OSHA Standard was published). In most cases, the MDL Panel assigns a circuit to hear the consolidated cases within a few days after the agency files the request.
If the court that ultimately hears the consolidated cases does not dissolve the stay entered by the Fifth Circuit, employers would have no obligation to comply with the OSHA Standard (unless there is a successful appeal). If, however, the circuit court that ultimately hears these cases dissolves the stay, employers would still be expected to comply with the OSHA Standard by December 5, 2021.
If the court that hears the consolidated cases dissolves the stay, employers will not have much time to comply before the December 5, 2021 effective date. For this reason, employers should still take active steps to prepare in the event there is no stay in place as of December 5, 2021.
Determining Whether an Employer Has 100 Employees and Must Comply with the OSHA Standard
Assuming the OSHA Standard goes into effect on December 5, 2021, each employer will first need to determine whether it is a covered employer. In addition to the questions raised in Goodwin’s prior client alert, employers should consider the following:
1. Do employees of subsidiaries and affiliates count toward the 100 employee threshold?
According to Department of Labor’s (“DOL”) FAQs on the OSHA Standard, employers should count employees at the “employer level,” meaning company-wide and not at the individual location level. If there is a single corporate entity with multiple locations, all employees regardless of location must be counted.
The FAQs do not address whether employees of a wholly owned subsidiary or a close affiliate must be counted. For other laws administered by the DOL, such as the Family and Medical Leave Act (“FMLA”), the DOL uses a test called the “integrated employer test” to determine whether two or more entities constitute a single employer such that all employees must be counted for the purposes of determining whether the employer is covered by the law. The “integrated employer test” delineates four factors to be considered in determining if separate businesses are an integrated employer: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership or financial control. No single factor is determinative, though centralized control of labor relations is generally a primary focus.
Although not expressly incorporated into the OSHA Standard or related guidance, the DOL would likely use this test to determine whether two or more entities are an integrated employer such that employees of each related entity should be included in the count.
2. Do employees based in foreign jurisdictions count toward the 100 employee threshold?
Apparently not. In its FAQs, the DOL states that “[i]n determining the number of employees, employers must include all employees across all of their U.S. workplaces….” (emphasis added).
3. Will an employer continue to be subject to the OSHA Standard if it has 100 employees when the OSHA Standard takes effect, but the number falls below 100 soon after that?
The OSHA Standard will apply to employers the moment the employer has at least 100 employees. Once an employer is covered by the OSHA Standard, the employer will be covered and obligated to comply with the OSHA Standard for its duration, regardless of changes in the number of employees. The current duration of the OSHA Standard is six months, although it is subject to potential extension.
4. Must an employer count independent contractors or staffing agency employees?
No, properly classified independent contractors are not counted toward the 100 employee threshold. With respect to staffing agency employees, if both the staffing agency and host employer have at least 100 employees, both are required to ensure compliance with the OSHA Standard for their own employees.
Steps That Covered Employers Should Take to Comply
By December 5, 2021, covered employers will need to either: (1) issue a written mandatory vaccination policy (“Option 1”); or (2) issue a written policy requiring employees to either be fully vaccinated or submit to regular testing and wear a compliant face covering, facemask or respirator (“Option 2”). Employers have a number of questions about how to implement these requirements, including the following:
1. What steps must employers take to comply with the OSHA Standard?
The OSHA Standard requires employers to:
- Draft and implement a mandatory vaccination policy or draft and implement a policy allowing unvaccinated employees who perform services at indoor workplaces at least once a week to elect to either get vaccinated or undergo weekly testing and wear a face covering at work except for in narrow circumstances;
- Unless already included in the written policy, provide employees with notice of the requirements of the OSHA Standard, information about the COVID-19 vaccine and its efficacy, safety, and the benefits of being vaccinated (provided in the document “Key Things to Know About COVID-19 Vaccines”), the anti-retaliation provisions under the OSH Act, which protects workers from retaliation for reporting work-related injuries or illnesses, and the criminal penalties under the OSH Act for knowingly supplying false statements or documentation (the “Notice Requirement”);
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees or a detailed attestation of vaccination status, signed and dated with an acknowledgement that providing false information may subject the employee to criminal penalties, maintain medical records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. All such information must be treated as confidential medical information;
- Provide employees with reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from any side effects following each vaccination dose;
- Require each employee who is not fully vaccinated to be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to an indoor workplace (if away from the workplace for a week or longer);
- Require employees to provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19 and immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19; and
- Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes except when an employee is alone in a room with floor to ceiling walls and a closed door or for a limited time when eating or drinking or as part of a security check.
2. What must be included in the mandatory vaccination policy?
If an employer chooses Option 1, the mandatory vaccination policy must be in writing and address all of the following:
- A requirement for COVID-19 vaccination;
- Exclusions from the policy as an accommodation for medical contraindications, medical necessity requiring delay in vaccination, disability or a sincerely held religious belief;
- A requirement that employees disclose their vaccination status and a description of how the employer will collect this information;
- Provision of paid time and sick leave for employees to receive the vaccination;
- A process for notifying the employer of a positive COVID-19 test and removal of any COVID-19 positive employees from the workplace;
- Information about the COVID-19 vaccine and its efficacy, safety, and the benefits of being vaccinated (provided in the document “Key Things to Know About COVID-19 Vaccines”); and
- Disciplinary action for employees who do not abide by the policy.
The employer should also include all relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement. OSHA has published a mandatory vaccination model policy for employers to use.
In addition, as discussed in Goodwin’s prior client alert, EEOC guidance states the policy should include specific instructions to employees on how to request a reasonable accommodation, including whom they should contact and what, if any, forms need to be completed. Assessing requests for religious accommodations may be particularly challenging for employers, as discussed in Goodwin’s client alert.
If an employer chooses Option 2, the employer must draft and implement a written policy to comply with the Notice Requirement. In some respects, this policy may be more complicated because it must address both the requirements for fully vaccinated employees and the requirements for employees who are not fully vaccinated (e.g., testing and face coverings), as well as all other aspects of the Notice Requirement. OSHA has published a different model policy for those employers who choose Option 2.
3. If an employer chooses Option 1, but has employees who are not fully vaccinated because of an exemption based on disability or a sincerely held religious belief, do the employees who are not fully vaccinated still need to comply with the testing and face covering requirements?
Yes. Even if the employer adopts a mandatory vaccination policy, but still has employees who are not fully vaccinated due to a reasonable accommodation based on medical contraindications, medical necessity requiring delay in vaccination, disability, or a sincerely held religious belief, the employer must comply with the testing and face covering procedures for those employees who are not fully vaccinated unless employees are also legally exempted from those requirements based on a disability or religious belief.
4. If an employer chooses Option 1, how long do employees have to become fully vaccinated if they are not already?
Employees have until January 4, 2022 to be fully vaccinated (60 days from the date the OSHA Standard was published). If they are not fully vaccinated by January 4, 2022, they must begin complying with the testing and face covering requirements of the OSHA Standard. If employers wait to begin mandating vaccines until the December 5, 2021 effective date, employees receiving two dose vaccines will not be fully vaccinated by the January 4, 2022 deadline and will be subject to the testing and face covering requirements until fully vaccinated if they perform services at an indoor workplace.
5. If an employer chooses Option 2, or has employees who are not fully vaccinated because of reasonable accommodations, what type of face covering must employees who are not fully vaccinated wear?
With limited exceptions, employees who are not fully vaccinated must wear a face covering when indoors and when occupying a vehicle with another person for work purposes. A “face covering” must:
- Completely cover the nose and mouth;
- Be made with two or more layers of breathable fabric that is tightly woven;
- Be secured to the head with ties, ear loops, or elastic bands that go behind the head;
- Fit snugly over the nose, mouth, and chin; and
- Be a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings.
Many cotton masks that are sold to consumers do not contain two layers of fabric. As a result, many of the masks commonly worn by individuals do not comply with the OSHA Standard.
6. Are there other types of face covering employees can wear?
Yes. Employers must permit an employee to wear a facemask, which is defined as a surgical, medical procedure, dental, or isolation mask that is authorized by the U.S. Food and Drug Administration (“FDA”), or a respirator, which is certified or authorized personal protective equipment that protects against airborne hazards by removing air contaminants (such as N95 respirators and powered air purifying respirators). An employer may also elect to provide a facemask or respirator to an employee instead of a face covering. In circumstances where the employer provides a respirator, the employer must comply with OSHA’s Mini Respiratory Protection Program under §1910.504.
7. How is an employer supposed to police face coverings, facemasks, and respirators to ensure that they meet the OSHA Standard?
As a practical matter, it may be difficult for employers to examine each employee’s face covering to ensure compliance. Many employers may choose to provide compliant masks at work to ensure that they meet the specific requirements of the OSHA Standard. If employers do not provide masks, the employer must make a good faith effort to determine whether the face coverings worn by employees who are not fully vaccinated are compliant, which may involve training of employees on what constitutes a proper face covering or periodic physical inspections of face coverings.
8. What types of testing for employees who are not fully vaccinated should an employer use?
Employees who are not fully vaccinated must use a test that has been approved by the FDA and the tests must not be both self-administered and self-read unless observed by the employer or a telehealth proctor.
As a practical matter, antigen testing typically produces the fastest results, yielding a result within minutes. This allows employers to consider the results before deciding whether to allow an employee to enter the workplace. If an employer uses an off-site laboratory for testing, there may be delays in receiving the result. In the event of such delays, OSHA has made it clear that it will look at the pattern and practice of the individual employee and/or the employer’s testing verification process and will “consider refraining” from enforcement where the facts show a good faith attempt to comply with the OSHA Standard.
9. How should employers store vaccination and testing records?
Testing records and the roster reflecting each employee’s vaccination status are considered employee medical records and must be maintained accordingly. The records must be kept securely and separately from personnel records. The records must also be stored in such a way that they are readily available in the event of an OSHA inspection and/or in the event an employee requests access to the employee’s individual records. As a reminder, employers only have one business day to provide an employee with access to the employee’s own test results. In addition, employers will only have one business day to provide the aggregate number of fully vaccinated employees at a workplace (a fixed physical location where the employer’s work is performed, not a residence) along with the total number of employees at that workplace to any employee who requests the information. Maintaining an ongoing roster, as required by the OSHA Standard, should permit the employer to easily provide this information.
10. How will OSHA enforce the OSHA Standard?
In the event an employer does not comply with the OSHA Standard, OSHA can issue citations, which currently carry the following penalties:
|Type of Violation||Penalty|
|Serious Other-Than-Serious Posting Requirements||$13,653 per violation|
|Failure to Abate||$13,653 per day beyond the abatement date|
|Willful or Repeated||$136,532 per violation|
OSHA has made it clear, however, that the agency will forgo programmed inspections where employers have made a good faith effort to comply with the OSHA Standard. For employers who choose Option 1, “good faith” is evidenced by the existence of a mandatory vaccination policy and fully vaccinated status for the vast majority of covered employees at a particular worksite. For either Option 1 or Option 2, OSHA will consider the steps the employer has taken to protect workers who are not fully vaccinated, such as good faith efforts to comply with the testing and face covering requirements. Employers should document good faith efforts to comply, such as recordkeeping training, inspections of face coverings, and keeping organized records of testing results.
Please contact a member of Goodwin’s Employment Practice for additional information and further guidance on the OSHA Standard and related legal developments.
Robert M. HalePartnerChair, Employment
Jennifer Merrigan FayPartner