OSHA published its Emergency Temporary Standard (ETS) relating to COVID-19 vaccination and testing for all employees at companies with 100+ employees on Thursday (11/4). The ETS applies only to contractors with 100 more employees; covered contractors will need to work quickly to implement the ETS Rule’s current requirements.
Provided below is a brief summary of the key requirements for FCA contractors.
The OSHA ETS was published in the Federal Register on Nov. 4 and is effective immediately. Compliance with the rule is delayed until Dec. 6, 2021 and compliance with COVID-19 testing for unvaccinated workers is delayed to Jan. 4, 2022.
Because the ETS is “temporary,” it will only be in effect for six months. At that point, OSHA would need to replace the temporary standard with a permanent standard if it wishes for the requirements to continue.
100 or More Employees
The ETS Rule applies only to contractors with 100 or more employees – firm or company-wide – at any time it is in effect. Thus, it is possible that contractors with fewer than 100 employees may become covered if they hire additional workers (including, as noted below, temporary or seasonal works) to help with the workload.
In determining the number of employees, contractors are instructed to count all employees company-wide, regardless of work location. As OSHA explained in its FAQs:
2.A.1. Are employees who perform work at offsite locations, such as customer homes, counted?
Yes. In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. For example, if an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would fall within the scope of the standard.
In counting employees, contractors are to include part-time, temporary, and seasonal workers that are employed directly by the contractor.
Employees of Other Companies, Including Subcontractors and Staffing Companies, Are Not Counted
The OSHA ETS Rule makes clear that, for counting purposes, the contractor does not count: (1) true “independent contractors” or (2) employees of other employers, such as workers employed by a staffing company or subcontractor.
With respect to “independent contractors,” the OSHA FAQs explain:
2.A.5. Are independent contractors included in the 100-employee threshold?
No. Independent contractors do not count towards the total number of employees.
Of course, independent contractors would include subcontractors that are true “independent contractors” because they manage their own business as a sole proprietor or through a separate business.
With respect to staffing companies or subcontractors who supply additional labor to a job, the OSHA FAQs explain that these workers do not need to be counted:
2.A.7. How are employees from staffing agencies 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 workers for purposes of the 100-employee threshold for coverage under this ETS. The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency. On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).
Indeed, for purposes of the 100-employee threshold, OSHA’s FAQs make clear that, contractors do not count employees of other companies, even if both company’s workers are performing work on the same worksite (such as at a large construction site):
2.A.9. How are employees counted at multi-employer worksites?
On a typical multi-employer worksite such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees; the host employer and general contractor would not need to count the total number of workers at each site. That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite.
Excluded Workplaces and Employees
The new OSHA ETS Rule does not apply to certain workplaces and employees.
With respect to excluded workplaces, the OSHA ETS Rule does not apply to the following workplaces:
- Workplaces covered by the federal contractor rules (i.e., workplaces covered under the Safer Federal Workforce Task Force); and
- Workplaces covered by OSHA’s Healthcare ETS Rule from June 2021, 29 C.F.R § 1910.502 (i.e., settings where any employee provides healthcare services or healthcare support services).
With respect to excluded employees, certain employees of covered contractors are not subject to the OSHA ETS Rule, including:
- Employees who do not report to a workplace where other individuals (such as coworkers or customers) are present;
- Employees while they are working from home; and
- Employees who work exclusively outdoors.
Mandatory Vaccination Policy (with a Caveat)
The OSHA ETS Rule requires covered contractors to develop a mandatory vaccination policy that “requires each employee to be fully-vaccinated.” Recognized exceptions include:
- Employees with medical contraindications;
- Employees who have a medical need to delay vaccination; and
- Employees entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Notwithstanding the appearance of a “hard” vaccine mandate, the OSHA ETS Standard includes an exemption to the “hard” vaccine mandate if the contractor implements a testing regime requiring unvaccinated workers to be tested every 7 days:
The employer is exempted from the [“hard” vaccine] requirement . . . only if the employer establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 . . . and wear a face covering . . . .
Stated differently, contractors are permitted to implement a “soft” vaccine mandate as long as the contractor promulgates a “written policy” giving employees the option to either: (a) get the vaccine or (b) submit to weekly COVID-19 testing and wear a mask.
Regular COVID-19 Testing (and Masking) for Unvaccinated Workers
The OSHA ETS Rule requires unvaccinated workers provide their employer with documentation showing a negative COVID-19 test within the last seven days in order to be eligible to work at a covered “workplace,” which is any location – fixed or mobile – where the contractor’s work or operations are performed. The only limitation is that “workplace” does not include an employee’s “residence.” As a result, unvaccinated workers who work exclusively from home do not need to submit to regular COVID-19 testing.
Unvaccinated workers who have not submitted proof of a negative COVID-19 test must be removed from the workplace until the employee provides a test result. Unvaccinated employees are also required to wear a mask “when indoors or when occupying a vehicle with another person for work purposes.”
Costs of COVID-19 Testing
The OSHA ETS Rule specifies that the rule “does not require the employer to pay for any costs associated with testing.” However, the rule is also careful to note that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.”
In California, for example, Cal. Labor § 2802 requires contractors to reimburse employees for all necessary business expenses. The California Labor Commissioner has interpreted this law to require contractors to pay any costs incurred by the employee for the test or vaccination if the contractor requires an employee to obtain a COVID test or a vaccination.
Likewise, in Minnesota, Minn. Stat. § 181.61 provides that “[i]t is unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination . . .” In December 2020, the Minnesota Department of Labor & Industry issued a “reminder” to employers stating that “[t]his statute applies to mandatory coronavirus (COVID-19) testing required by the employer before employees may return to work” and therefore, “employees may not have their wages reduced in any way to cover the cost of such a test.”
Other states have similar laws and make take a similar position regarding reimbursing employees for the costs of COVID-19 testing. Whether these laws would apply to testing mandated by OSHA or another federal agency remains to be seen, but it is a strong indication that payment for testing and testing time may be required by states like California and Minnesota.
Even if reimbursement is not required by state law, the contractor’s collective bargaining agreement could require that the contractor pay the costs of testing. Thus, in addition to checking state law, contractors will also need to review their collective bargaining agreements.
Finally, even if testing time is compensable under state law or the contractor’s collective bargaining agreement, contractors could potentially avoid paying for testing time by having unvaccinated employees use FDA-approved “rapid tests” at office or jobsite.
Paid Time Off for Vaccination and Recovery from Vaccination
The OSHA ETS Rule requires covered contractors to provide paid time off in two circumstances: (1) when getting vaccinated for COVID-19 and (2) when recovering from getting vaccinated.
First, covered contractors are required to provide employees with up to “4 hours of paid time, including travel time, at the employee’s regular rate of pay” for each dose of the COVID-19 vaccine. For this time, contractors are not permitted to require employees to use existing PTO, vacation or sick time balances.
However, if an employee voluntarily chooses to get vaccinated over the weekend or during non-working hours, then the employee is not eligible for pay. As the OSHA FAQs explain:
5.C. If an employee gets vaccinated outside of work hours, such as on a Saturday, do I have to still grant them reasonable time for vaccination?
No. If an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours. . . .
Second, contractors are also required to provide “reasonable time and paid sick leave” to employees who are “recover[ing] from side effects experienced following any primary vaccination dose.” In this circumstance, contractors are permitted to require employees to use any existing PTO, vacation or paid sick leave balances for time the employee spends recovering from side effects experienced following a vaccination dose.
No Paid Time for Employees Who Test Positive for COVID-19
The OSHA ETS Rule requires contractors to mandate that all employees notify the contractor of a positive COVID-19 test or receipt of a COVID-19 diagnosis. Contractors must then, in turn, immediately remove from any employee testing positive or receiving a positive diagnosis from the workplace.
Employees may return to the workplace only if the employee meets one of the following requirements:
- The employee receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
- The employee meets the return to work criteria in CDC’s “Isolation Guidance”; or
- The employee receives a recommendation to return to work from a licensed healthcare provider.
The OSHA ETS Rule makes clear that employees are not entitled to pay under the OSHA ETS Rule. However, employees may be entitled to pay under other federal, state and local laws or the contractor’s collective bargaining agreement:
This section [of the OSHA ETS Rule] does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
In June 2021, OSHA issued a “Healthcare ETS Rule” that applied to hospitals and nursing homes. As part of this rule, employers were required to provide paid leave (called “medical removal benefits”) to employees who tested positive for COVID-19. The OSHA ETS Rule did not include a similar requirement, but, as noted above, contractors should be mindful that other paid sick leave laws or collective bargaining agreements could require that employees need to be paid for time that is missed as a result of a COVID-19 diagnosis.
The OSHA ETS Rule also includes several recordkeeping requirements, including:
- Keeping a record of each employee’s vaccination status and associated proof of vaccination from both fully and partially vaccinated employees;
- Keeping a roster of each employee’s vaccination status;
- Storing vaccination records and rosters as they would other employee medical records, and maintaining the confidentiality of the records to the extent required by law; and
- Maintaining records of each COVID-19 test result an employee provides to the employer and maintaining the confidentiality of the test results as the employer would other medical records.
The OSHA ETS Rule also provides that contractors must notify OSHA of “each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.”
Challenges to the ETS
Since being announced, 11 states – including Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming – have already filed a lawsuit alleging that the OSHA ETS Rule is “unconstitutional, unlawful, and unwise.” Industry groups have also stated their intent to challenge the ETS.
Courts will need to determine whether these lawsuits have any merit. It is possible that a court will invalidate or limit the scope and application of OSHA’s ETS. For now, contractors have some time before the rule impacts their workforce.
The OSHA ETS Rule imposes strict requirements on contractors with over 100 employees. Contractors subject to this rule should begin planning for how to implement these requirements over the next 60 days while being mindful that it is possible that a court may invalidate the OSHA ETS Rule requirements.
FCA’s labor relations team is ready to provide FCA members with additional resources, including Frequently Asked Questions (“FAQs”) and guidance on FCA contractors and navigate these complex legal requirements with minimal impact to their business.