OSHA Emergency Temporary Standard Mandating COVID-19 Vaccines or Testing/Masks Catches Federal Contractors in a Bind by Exempting Them from the More Generous Exceptions to the OSHA ETS

by | Nov 8, 2021 | OFCCP Compliance, Week In Review (WIR)

On Thursday, the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) published both its highly anticipated Emergency Temporary Standard (“ETS”: 86 FR 61402) as an “Interim Final Rule” implementing its authority pursuant to the Occupational Safety and Health Act of 1970 (“OSH Act”) and its corresponding FAQs related to vaccine and mask mandates for employers. Also, in a surprise, OSHA simultaneously issued a Notice of Proposed Rulemaking, in effect, within its OSHA ETS by seeking public comment on whether to harden the ETS into a permanent Rule after six months when the ETS expires. In a further surprise, OSHA delayed implementation of all requirements in the ETS for 30 days from publication of its ETS, and delayed the testing of unvaccinated employees the ETS requires for 60 days. But, of greatest concern to federal contractors and subcontractors, OSHA exempted them from the ETS (which, counterintuitively, is not necessarily desirable for federal contractors or their employees, as we discuss below).

The ETS:

  • mandates employers with 100 or more employees at any time the ETS is in effect (thus, even if an employer falls under 100 employees at some point, it must still comply with the ETS because of its prior employee count);
  • requires COVID-19 vaccinations of employees, or at least weekly testing and wearing of face coverings for those not fully vaccinated;
  • carves out individual exceptions for those employees who:
    • work exclusively from home (remote work exception); and/or
    • require a reasonable accommodation because unable to be vaccinated and/or wear a face covering due to a disability (recognized as such within the meaning of the ADA: underlying medical condition exception); and/or
    • require a reasonable accommodation for their sincerely held religious belief, practice or observance (religious exception); and/or
    • do not report to a workplace where other individuals are present (works alone exception); and/or
    • work exclusively outdoors (outdoor work exception, in a nod to the construction and other type industries).
  • carves out wholesale exceptions from the ETS for those employers which are otherwise covered under:
    • the Safer Federal Workforce Task Force COVID-19 Workplace Safety guidance applicable to federal contractors and subcontractors, or
    • the OSHA ETS dated June 21, 2021 for healthcare workers.

IMPORTANT: So, federal contractors and subcontractors (and health care employers) otherwise covered by the non-regulatory “Guidances”, “Fact Sheets”, “FAQs” and “Press Releases” the Safer Federal Workforce Task Force and The White House have issued may not avail themselves of the broader license to exempt employees from vaccine and masking mandates the OSHA ETS affords “employers” the ETS covers.

For example, numerous types of employees a federal contractor would be forced to be vaccinated or terminated from employment could remain employed under the OSHA ETS.

Accordingly, the architecture of President Biden’s COVID-19 Plan is currently this: An employer with 100 or more employees which is ALSO simultaneously a federal contractor/subcontractor covered by the purported “requirements” of the string of Safer Federal Workforce Task Force “Guidances”, “Fact Sheets”, “FAQs” and “Press Releases” would have to follow that string of obligations and NOT the OSHA ETS (or be allowed to avail itself or its employees of the ETS’s numerous “exceptions” to the ETS’ vaccination and testing/masking mandates not available to federal contractors and subcontractors).

This inconsistent and highly unusual differential approach to the protection of the safety and health of employees from the same workplace threat will become a centerpiece of evidence for those covered “employers” and states attacking the OSHA ETS, as well as those federal contractors/subcontractors and states attacking the vaccination or employee termination mandates of the Safer Federal Workforce Task Force seeking to implement President Biden’s Executive Order 14042 (born of the same September 9, 2021 “President Biden Covid-19 Action Plan”).

Additionally, employers should know the ETS does NOT carve out from the vaccine mandate those employees with “natural immunity” from a prior COVID-19 infection. The ETS went into effect on Friday November 5, 2021, when OSHA published it in the Federal Register and will remain in effect for six months (but see both the related story, below in this WIR, re the federal court injunction issued Saturday enjoining the OSHA ETS nationwide and also the delay dates of OSHA’s enforcement of its ETS discussed below in this story).

OSHA also now seeks public comment on the ETS and whether OSHA should adopt the ETS as a “Final” Rule which would be permanent in nature when the ETS times out in six-months (i.e., on Wednesday May 4, 2022). OSHA also seeks comment on whether employers with fewer than 100 employees should be subject to the ETS and/or any coming permanent Rule. (NOTE: OSHA’s jurisdiction bottoms at companies employing only ten employees and assuming those businesses affect inter-state commerce). OSHA will accept public comments on the ETS and these other open questions to and through midnight Monday December 6, 2021).

Here is What the ETS Requires, in General (Employer and Employee-specific Requirements Follow, Below, Along with Discussion of How the ETS Interplays with the Federal Contractor Vaccine/Mask Mandates):

The ETS imposes significant requirements on private employers with 100 or more employees total (whether part-time or full-time) related to COVID-19 vaccination, masking and testing, and recordkeeping. Furthermore, 22 states and the two territories which are signatory to their own OSHA-approved “State Plans” have 30 days to implement the federal OSHA ETS Rule (or their own mandate with minimum standards equal to or greater than the ETS). These 22 State Plans are applicable to the private and state employers in those states. There are also six OSHA-approved State Plans applicable only to state and local governments, which Plans now have 30 days to implement the federal OSHA ETS Rule as to those public employers in those states with 100 or more employees. See our October 19, 2021 WIR story titled: “Little Known Section 18(b) of OSHA Will Now Drive Many States to File Lawsuits to Stop the OSHA COVID-19 Vaccine Mandate They Do Not Want” 

Note Tricky Way to Count Employees: All employees exempted from the vaccination mandate NONETHELESS count towards the 100-employee threshold coverage requirement. Once an employer exceeds the 100-employee threshold (as swollen by counting those employees exempted from the vaccine mandate), all employees not exempted would have to comply with the vaccine and mask mandates the ETS prescribes.

Note Tricky Definition for Outdoor Work: To be considered an employee who works “exclusively outdoors,” an employee must work outdoors all days they work, must not routinely occupy vehicles with other employees, and may only be indoors for de minimis amounts of time, such as use of a bathroom.

Employer Requirements

Covered employers must:

    1. establish, implement, and enforce a written policy requiring either that (a) an employee be vaccinated, or (b) provide proof of regular testing of unvaccinated employees for COVID-19 at least once a week and requiring those employees to wear a face covering in the workplace. NOTE: The required policy must allow for reasonable accommodation of those employees who are unable to be vaccinated and/or wear a face covering due to a disability (which qualifies as such pursuant to the ADA) or conflicts with a worker’s sincerely held religious belief, practice or observance. (See our October 13, 2021 WIR story “EEOC Updated Guidance on COVID-19 Vaccinations” discussing the updated EEOC FAQs related to the religious exemption).
    2. determine the vaccination status of each employee and maintain records of each employee’s status as employee medical records. Acceptable proof of vaccination status can include:
      1. a record of immunization from a health care provider or pharmacy;
      2. a copy of the COVID-19 vaccination record card;
      3. a copy of medical records documenting vaccination;
      4. a copy of immunization records from a public health, state, or tribal immunization information system;
      5. a copy of any other official documentation containing the type of vaccine administered, dates of administration, and the name of the professional or site administering the vaccine; or
      6. when an employee is unable to produce acceptable proof, an employee-signed and dated statement attesting to vaccination status, the reason for the employee’s inability to produce proof, information regarding the type of vaccine administered and the dates and location of such administration, and a declaration certifying the truth and accuracy of the statement with knowledge that providing false information subjects the employee to criminal penalties.
    3. provide a reasonable amount of time to each employee to receive vaccination, and up to four hours of paid time at the employee’s regular rate of pay for such purpose.
    4. Provide reasonable time and paid leave to recover from any side effects from vaccination.
    5. Treat employees unable to provide proof of vaccination as not fully vaccinated, and ensure each employee not fully vaccinated complies with testing and face covering requirements (listed below as to the employee’s obligations).
    6. Remove from the workplace any employee who receives a positive COVID-19 test or diagnosis, with no return until receipt of a negative result on a COVID-19 nucleic acid amplification test, the employee meets the return-to-work criteria in the CDC’s “Isolation Guidance,” or the employee receives a recommendation to return to work from a licensed healthcare provider (the employer does not have to require the employee test for COVID-19 for 90 days following an employee testing positive for COVID-19).
    7. Maintain records of each test result for non-fully vaccinated employees.
    8. Allow voluntary use of face coverings by employees, customers, or workplace visitors.
    9. Pursuant to the requirements in 29 CFR § 1904.39 (other than sections (a)(1), (a)(2), and (b)(6) therein), report to OSHA each work-related COVID-19 fatality within eight hours of the employer learning of such fatality, and each in-patient hospitalization within 24 hours of the employer learning of such hospitalization.
    10. Make available, upon request, by the next business day to an employee, or anyone having written authorized consent from such employee, any records of vaccine documentation and test results for the employee, and the aggregate number of fully vaccinated employees at a workplace along with the total number of employees. (NOTE: THE INFORMATION RELATED TO THE NUMBER OF EMPLOYEES IN THE WORKPLACE AND VACCINATED DOES NOT INCLUDE EMPLOYEE NAME OR INFORMATION, SINCE SUCH PRODUCTION WOULD VIOLATE THE EMPLOYER’S HIPAA OBLIGATIONS).
    11. Make available, upon request, within four business hours to the Assistant Secretary of Labor (for OSHA) the employer’s written vaccine policy and aggregate numbers of vaccination and employee counts.
    12. Provide written notice to employees of:
      1. The ETS requirements and any policies or procedures implemented pursuant to complying with ETS;
      2. The “Key Things to Know About COVID-19 Vaccines” document from the CDC;
      3. Requirements under 29 CFR 1904.35(b)(1)(iv) prohibiting retaliation; and
      4. Criminal penalties under 18 U.S.C. § 1001 and Section 17(g) of the Occupational Health and Safety Act associated with knowingly

Employee Requirements

  1. For employees required to report to a workplace where others are present at least once during a seven-day period, and who are not fully vaccinated and do not meet one of the exemptions, the ETS requires employees to:
    1. test for COVID-19 at least once every seven days. (NOTE: the employee must bear the costs of such testing, unless a law, regulation, collective bargaining agreement or the agreement of the employer imposes the cost on the employer).
    2. provide documentation of their most recent COVID-19 test result to their employer no later than the seventh day following the date the employee last provided a test result.
    3. must wear a face covering indoors or when occupying a vehicle with another person for work purposes (unless unable to do so because of a disability), except when alone, while eating or drinking in the workplace, for identification purposes, while wearing a respirator or facemask, or a face covering is infeasible or creates a greater hazard when performing job duties.
    4. must inform their employer of any positive COVID-19 test or diagnosis.
  2. For employees who do not report during a period of seven or more days to a workplace where others are present (employees out on leave or on vacation, for example), and who are not fully vaccinated and do not meet one of the exemptions, the ETS requires they:
    1. test for COVID-19 within seven days prior to returning to the workplace (the employee must bear the costs of such testing, unless a law, regulation, collective bargaining agreement or agreement of the employer imposes the costs on the employer).
    2. provide documentation of a negative test result upon return to the workplace.
    3. inform the employer of any positive COVID-19 test or diagnosis.

Effective Dates

The ETS requires compliance within 30 days after the effective date of the ETS (so by Sunday December 5, 2021), other than the requirement for employers to test not fully vaccinated employees which becomes effective within 60 days after the effective date of the ETS (so by Tuesday January 4, 2022).

OSHA Justification for ETS

OSHA estimates the total cost to employers to implement the ETS to be approximately $2.9 billion. As required under Section 6(c)(1) of the OSH Act, OSHA issued its ETS based on its finding that COVID-19 exposure represents a “grave danger” to workers, and that immediate action is necessary to protect employees from such danger (though compliance with the ETS is being delayed 30 and 60 days, respectively).

For purposes of eventually converting the ETS to a permanent Rule, which OSHA is attempting to do concurrently with its publication of the ETS, OSHA is also seeking public comment as to whether COVID-19 exposure constitutes merely a “significant risk” to employees, which is a lower standard, of course, than a “grave risk” (which higher standard OSHA cites to support its “emergency temporary standard,” or “Rule”). Noting that COVID-19 is both a “physically harmful agent” and a “new hazard,” OSHA cites to the various health effects of symptomatic COVID-19 illness in support of its finding of a “grave risk,” including the potential for employee death. Furthermore, OSHA relies on various case decisions to establish that Emergency Temporary Standards may relate to hazards that are not uniquely “work-related”; especially given the highly transmissible nature of the virus. Given that the harmful effects of the virus would have a significant impact on the workplace (due to the preponderance of areas in the workplace where multiple people may come into contact with each other for extended periods of time), OSHA deemed the ETS necessary to require vaccinations since they are the most effective means to combat the more severe effects of COVID-19. In support of its conclusion, OSHA cites to various scientific studies and reports that take up more than 40 of the 261 Federal Register pages needed to publish the ETS.

Employer Penalties for Non-Compliance

Current OSHA Rules provide for penalties and fines of up to $13,653 for any “serious” violation. Additionally, any “willful” or “repeat” violations may result in a fine of up to $136,532. However, employers should be aware that the pending “Build Back Better” Act will increase maximum fines for all OSHA Rules to $70,000 for “serious” violations and up to $700,000 for “willful or repeat” violations. If you are trying to keep track of the changing marketing campaigns in the Nation’s Capital, the originally named $3.5T “Budget Bill” got pared back to a $1.75 trillion bill when it ran into political opposition among the moderates within the Democrat Party. This is separate from the bipartisan $1.2 trillion Infrastructure Bill passed by the House on Friday, November 5th.

Potential Legal Challenges Anticipated

As expected, several states, business groups, and employers seeking to exalt individual freedom have indicated their various intentions to file lawsuits, and some have already filed suit (see related story, below), challenging the ETS. These critics of the ETS contend it is an improper overreach of the federal government and counterproductive to the “restart” of an economy still recovering from the recent pandemic. Some of those states are the same states previously noted above as being required to implement the ETS or a similar Rule as part of OSHA’s approval of State Plans (discussion of these threatened suits is available here). This would follow in the footsteps of suits brought against the Safer Federal Workforce Task Force COVID-19 Workplace Safety guidance applicable to federal contractors and subcontractors, and state laws imposing restrictions on private employer vaccine mandates.

Much of the concern related to potential legal challenges to the ETS was part of DE’s podcast with Jay J. Wang discussing employer vaccine mandates. Specifically, private employer mandates absent government instruction enjoy the broadest legal support pursuant to general theories related to contract, conditions of employment, and private entities having the freedom to determine with whom they wish to enter into a private relationship based on their choice (provided the parties continue to comply with legal protections under the Americans with Disabilities Act and Title VII, or other similar non-discrimination of association laws).

Furthermore, while case law exists establishing a legislative body’s right to require vaccination (see Jacobson v. Massachusetts, 197 U.S. 11 (1905); see also Zucht v. King, 260 U.S. 174 (1922)), these legal cases preceded the era of federal regulatory agencies and thus do not address the right of mere federal agencies to mandate vaccines the Congress had previously decreed in by-gone decades. The use of regulatory agencies to mandate vaccines is further exacerbated by the failure of two of the vaccine mandates (including the mandate for federal contractors and subcontractors, for example) to follow any public notice and comment Rulemaking formalities. Rather, President Biden has resorted to mere Executive fiat, including the issuance of major regulatory requirements through mere FAQs, “Fact Sheets” and “Guidance” memoranda. Challenges to the OSHA ETS will be the most difficult for employers to (ultimately) set aside in the Courts given that OSHA does have a regulatory delegation of authority to protect Americans at work. By contrast, the federal contractor vaccine and mask mandate appears to be the easiest for employers, states and other interest groups to attack in the courts given (a) the complete lack of Notice and Comment Rulemaking formality and (b) the lack of appropriate exceptions as measured by a simple comparison of the federal contractor mandates with those of the OSHA ETS mandates. The presence of the numerous, thoughtful and detailed exceptions in the OSHA ETS condemns the flimsy and puerile federal contractor mandates.

In other words, to challenge the anticipated ETS from OSHA, advocates are going to have to argue: (1) Congress should not be able to delegate its rulemaking authority in this regard to OSHA (the nondelegation doctrine; the Supreme Court just a few days ago agreed to hear a challenge to the EPA based on the nondelegation doctrine in what may be a blueprint for litigants challenging the ETS); (2) courts should revisit and overturn the Chevron deference standard, which refers to the doctrine of judicial deference given to administrative actions (where Congress has delegated authority to an administrative agency and has not spoken directly to the precise issue, courts must defer to the administrative agency’s answer or interpretation of the law); and/or (3) the current situation does not rise to the level of a “grave danger” and/or the instruction from the ETS is overbroad (for example, the National Retail Federation and others brought action against Cal/OSHA alleging its COVID-19 emergency temporary standard violated their due process rights and was issued in violation of the state Administrative Procedure Act). For employers challenging the ETS, one potential source of optimism in their pursuit is OSHA’s track record in defending Emergency Temporary Standards against suit. Of the seven Emergency Temporary Standards OSHA has issued since 1971 which employers have challenged, judicial review resulted in the vacation or stay of five of them (one of which involved an Emergency Temporary Standard involving 14 carcinogens that the court vacated as to two of the carcinogens).

What to Do for Now

As employers await the results of the anticipated litigation, employers with 100 or more employees should immediately consult with counsel to develop the appropriate mandatory vaccination policy with the appropriate opt-out language in anticipation of the coming deadlines, or choose to take the risk that the federal Courts will permanently strike down the ETS. Should employers take the risk to wait for successful litigation and “do nothing” at this point by choosing not to comply, they risk incurring possible draconian OSHA financial sanctions, especially if the Budget Bill (by whatever name) passes with the current revenue producing components raising OSHA financial fines to unprecedented high levels. Furthermore, employers should consult with counsel as to how to handle potential requests for accommodation due to disability or a religious belief, including review of the EEOC’s recent COVID-19 religious accommodation FAQs added to its Technical Assistance Guide and discussed previously here. Finally, employers with fewer than 100 employees should continue to monitor the Biden Administration’s and OSHA’s pronouncements to become aware whether OSHA will seek to expand the ETS to include smaller employers in the future should COVID-19 infection rates and fatalities continue to grow.

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